Mr. Francis X. Beytagh, Jr.: Chief Justice and may it please the Court.

In view of the few minutes remaining to me, I'd like to turn first to the substance of the position of the Government which in essence says that the court below improperly determined that that the HEW regulation in question here conflicted with the statute.

If time permits, I should like then to have an opportunity to respond further to the jurisdictional point that Mr. Justice Stewart raised yesterday.

The statute that is in question here is Section 402 (a) 7.

It's reprinted in the Government's -- the appendix to the Government's brief in pertinent part, it provides that a state plan for aid and services to needy families with children must provide that the state agency shall in determining need take into consideration any other income and resources of any child or relative claiming aid to families with dependent children.

The HEW regulation construes that critical language any other income and resources as meaning actual income, actual contributions made by stepfather or a MARS.

California's approach is to the contrary.

They assumed that where there is a stepfather or a MARS that his income is attributable and is a resource of the child without any actual proof.

That's the essence of the controversy here.

Now, California agrees and the court below agreed that if HEW's regulation is valid, as a proper implementation of the act, that California's conflicting statute must necessarily fall in the sense that California can no longer continue to be entitled to receive benefits should the secretary determine to cut them off.

Justice Potter Stewart: Under the Federal regulation, so I understand it, it would be incumbent upon California to prove or to show or to ascertain to its own satisfaction perhaps, how much in fact your stepfather or the man assuming the role of spouse actually does contribute.

Mr. Francis X. Beytagh, Jr.: That's -- that's correct Your Honor.

I think there are three positions that you could take, one is California which is essentially an irrebuttable presumption of support --

Justice Potter Stewart: Right.

Mr. Francis X. Beytagh, Jr.: From the very fact --

Justice Potter Stewart: It's an attribution of support by what [Voice Overlap].

Mr. Francis X. Beytagh, Jr.: The other is an approach that could be regarded as consistent with the HEW regulation but I don't think it is, that is if the burden of proof is on the recipients to show that the income was not actually received.

Justice Potter Stewart: Well, that's what I was --

Mr. Francis X. Beytagh, Jr.: But -- but our view is that the regulation -- the language of the regulation speaks in terms of actual contributions and income actually received and attempts to track King versus Smith in this respect, so I think that it's the third category which is that the burden of proof is on the state to show that the income was in fact received so as to reduce -- in extreme cases --

Justice Potter Stewart: I suppose this might vary from months to months and even from week to week or even from day to day.

Mr. Francis X. Beytagh, Jr.: Yes, and California has raised the question that we think is reasonable question here about seriousness of the administrative burden.

Justice Potter Stewart: Yes.

Mr. Francis X. Beytagh, Jr.: Now, we have checked as best we can, HEW has checked on my behalf determined that some 40 states have programs that do exactly this, to track the HEW regulation.

I have attempted to ascertain whether the feeling of these states and their administrators is that that's a practicable way to proceed, and the answer has been yes.

It's not a complete survey but as best we could sample it.

Justice Potter Stewart: Well, how do they deal with the fact this maybe a changing pattern?

I mean, the stepfather may have all good intentions and one month might contribute, the next month he might stop at bar and grill and drink up or gamble away all the money and not contribute that month.

What is the --

Mr. Francis X. Beytagh, Jr.: Most of them proceed as we proceed in the income tax context, they require self disclosure and self reporting.

Perhaps to the surprise of some, they've found that in most cases this works.

That people receiving welfare benefits are prepared and do disclose honestly what income they do receive from other sources.

This is the basic trust of President Nixon's welfare message, the notion of self reporting and self disclosure.

Besides that there are case workers that proceed to investigate and talk to these people.

They talk to the man and they talk to the women, whatever.

The problem there is very significant, there's no doubt about it but most of the states have not thought that they are insurmountable.

Justice Hugo L. Black: Do you know of any case in this Court where it has ever held, where two litigants have a controversy among themselves, there can be a case or controversy within the constitutional sense, when one of them has the right to settle the case on his own territory?

Justice Hugo L. Black: Well, the Government here has a right to decline that the state have money.

Mr. Francis X. Beytagh, Jr.: That's correct?

Justice Hugo L. Black: What's the case --

Mr. Francis X. Beytagh, Jr.: The Government is not a litigant in this case Your Honor.

Justice Hugo L. Black: It's not a litigant but it's involved.

Mr. Francis X. Beytagh, Jr.: It's involved, that's correct.

Justice Hugo L. Black: And that's what you try and decide.

Mr. Francis X. Beytagh, Jr.: But the litigation here --

Justice Hugo L. Black: What should be a controversy between the Government and the state and the state can determine for itself whether it accepts the money.

Mr. Francis X. Beytagh, Jr.: Your Honor --

Justice Hugo L. Black: Why should that be a case of controversy which calls for the attention of this Court?

Mr. Francis X. Beytagh, Jr.: Well, Your Honor, I think that the controversy is between the people who consider themselves entitled under the federal statute.

Justice Hugo L. Black: But they're trying to get around by -- around at all by saying, “Well, the state would do what it should, we'd get our money”.

Mr. Francis X. Beytagh, Jr.: Your Honor --

Justice Hugo L. Black: The state doesn't have to do it.

The state can decline to do it and the Government can decline to that amount of money.

Mr. Francis X. Beytagh, Jr.: Well, the state can theoretically decline a debt but California like virtually every state has a specific statute that says that if any of their statutes and rules and regulations in the welfare context are inconsistent with Federal rules and regulations, the Federal rules and regulations shall prevail.

So, while theoretically California may be in a position to simply remove itself from the Federal program however impractical as a practical matter, they have made this judgment.

Why should this Court with all the burdens it has multitudinous cases that are becoming before, undertake a case of controversy when there is not a case of controversy between the two main persons who are interested in this, namely the state and the Government.

Mr. Francis X. Beytagh, Jr.: Your Honor, I think Congress intended when it passed the Social Security Act for needy.

Justice Hugo L. Black: Social Security is a different thing.

Mr. Francis X. Beytagh, Jr.: This --

Justice Hugo L. Black: Why do you collect your money for social security?

Mr. Francis X. Beytagh, Jr.: This is a part of the Social Security Act enacted in 1935 as Your Honor knows and this AFDC program has been in existence since that time.

Congress intended I think it's quite clear.

Justice Hugo L. Black: That's an obligation on the part of the Government, isn't it?

Mr. Francis X. Beytagh, Jr.: It's an obligation on the part of the --

Justice Hugo L. Black: Federal Government.

Mr. Francis X. Beytagh, Jr.: That's correct, to assist the state.

Justice Hugo L. Black: This is an obligation to a certain extent on the part of the state, to certain extent on the part of the Federal Government under to be -- based on agreement which they can reach or not reach as they seek it.

Mr. Francis X. Beytagh, Jr.: But they've all seemed fit to do that and they all as we know is practical matter --

Justice Hugo L. Black: The controversy here as to what the state can do and what the Federal Government can do.

Mr. Francis X. Beytagh, Jr.: Well, I think there's a very real controversy, these people --

Justice Hugo L. Black: The Government has its own sanction in its own hand.

It can stop paying the state any money.

Mr. Francis X. Beytagh, Jr.: Well, in this particular case, these people claim benefits and the claimed that California --

Justice Hugo L. Black: Yeah -- yeah, right indirect claim benefit, you get a lawsuit settled between the state and Federal Government.

Mr. Francis X. Beytagh, Jr.: Well, Your Honor, I understand the difficulties with this Court not wanting to become the Court of last resort and welfare disputes.

Justice Hugo L. Black: Well, why won't this place us right there?

Mr. Francis X. Beytagh, Jr.: I don't think it will place you right there Your Honor.

It seems to me that if the law in this area is clarified so that the states understand the obligations they have and I think King versus Smith went a long way in that direction.

Justice Hugo L. Black: If the states understand it, why should we have to decide it?

Mr. Francis X. Beytagh, Jr.: What I'm suggesting is that when cases like this are decided, it will be clear what the obligations of the states are.

Justice Hugo L. Black: To that extent, but they change with these changing dates.

We need the changing litigants.

Mr. Francis X. Beytagh, Jr.: Well, Your Honor with all respect I don't think that the federal approach is changed the thing and so long as the Court establishes that the federal construction of the Act is the appropriate one in this area, then the state will necessary have to abide by it.

And I think California and New York and the other states have already made this judgment.

Justice Hugo L. Black: We will have to abide by it, and if we don't the Government has its relief in its own hand.

It can decline to let him have the money.

Mr. Francis X. Beytagh, Jr.: That's correct but that's circular because they've already made this judgment unless California resends the statute, it's made a judgment that it will exceed to the Federal rules and regulations.

Justice Hugo L. Black: And the Federal Government can at this moment withdraw its funds.

Mr. Francis X. Beytagh, Jr.: Correct.

And that's correct they can but whether that's a reasonable or practical courses would carry not just --

Justice Hugo L. Black: Probably more reasonable and to get this Court mixed status in every welfare case that arises in the whole range of this Court.

Mr. Francis X. Beytagh, Jr.: But the approach you suggest would carry over to every Federal matching grant program Your Honor and would simply say that there's no justiciable controversy here and that the way to proceed is for the Federal Government always to cut off funds and I don't think the Court has proceeded that way in the past and I don't think that it's a reason.

Justice Hugo L. Black: We haven't had this case before.

Mr. Francis X. Beytagh, Jr.: Your Honor with all respect in King versus Smith, the Court said there is of course no question that the Federal Government unless barred by some controlling constitutional prohibition may impose the terms and conditions upon which its money allotments to the state shall be dispersed and that any state law or regulation --

Justice Hugo L. Black: It is supported by this Court would deny that statement?

Mr. Francis X. Beytagh, Jr.: And that any state law or regulation inconsistent with such federal terms and conditions is to that extent invalid.

Justice Hugo L. Black: Yes, when it's raised in a case of controversy.

Mr. Francis X. Beytagh, Jr.: Well, I think that King versus Smith was as much a case of controversy as the present case.

Justice Potter Stewart: Is there any --

Justice Hugo L. Black: No, even if it was, there's no sign we should continue to be bound by if it's wrong.

Mr. Francis X. Beytagh, Jr.: No, I'm suggesting Your Honor that if the Court clarifies the questions raised in this case and other cases that there's no reason to expect that the Court will continue to be involved year after year in these disputes over the welfare law.

Once the secretary has his authority made clear, I think that it's reasonable for the Court to expect that he allied.

But there have been serious questions about this, they have been raised in litigation and they are before the Court presently.

Justice Hugo L. Black: But the custom is now arrived whereby everybody bringing every kind of welfare case for this state bringing in a lap number of controversies that we are simply not capable on account of the lack of numbers, the lack of scope to handle.

Chief Justice Warren E. Burger: I suppose it's complicated somewhat for the fact that the statute is now amended and the regulations are amended.

And so, we'll have a whole new set of statutes and regulations to deal with this.

Chief Justice Warren E. Burger: There are a new set of regulations of HEW are there not?

Mr. Francis X. Beytagh, Jr.: Well, there is not any new set of regulations there on the question here at issue --

Chief Justice Warren E. Burger: How about the new California statute?

Mr. Francis X. Beytagh, Jr.: Well, the new California statute as Mr. Amsterdam discussed yesterday does raise with respect to parts of the controversy before the Court, some questions that have to be resolved I think on remand by the District Court but it doesn't do away with the entire matter here.

It doesn't touch the step father questions and California is continuing to act as far as we know under the old statute.

They have not yet promulgated regulations -- officially adopted regulations.

Chief Justice Warren E. Burger: When does the new statute go in to effect again?

Mr. Francis X. Beytagh, Jr.: Well, the new statute was enacted in November 1969 and we agreed that there are questions that properly should be probed as to that statute and its effect on the MARS, man assuming the role of a spouse because that's all that it relates to by the District Court and we suggest to that extent to the remand of that Court would be appropriate but that doesn't (Inaudible) --

Your Honor, I really have had a chance on behalf of HEW to make the affirmative argument and could I have several minutes to do so?

Chief Justice Warren E. Burger: The affirmative argument on --

Mr. Francis X. Beytagh, Jr.: On the validity of its regulation.

Chief Justice Warren E. Burger: For how long do you think you'd need?

Mr. Francis X. Beytagh, Jr.: About five minutes.

Chief Justice Warren E. Burger: I will grant you five minutes and extend accordingly.

Mr. Francis X. Beytagh, Jr.: Thank you, Your Honor.

Chief Justice Warren E. Burger: We can trade on that.

Mr. Francis X. Beytagh, Jr.: We think that the regulation is valid for a number of reasons.

First, we think that the presumption of validity always attaches and as this Court has said a number of times to the administrative interpretation by a Government official charged with the responsibility for administering a particular act.

As Mr. Amsterdam indicated yesterday, the same approach, the approach of requiring proof of actual income before reduction of benefits has been applied across the board in other categorical public assistance programs by HEW.

Moreover, we think that in 1967 Congress at least implicitly approved the HEW regulation when it reenacted the Act and in an act of certain amendments to these provisions knowing what HEW's construction had been and not seeking to change it.

Moreover, we think that it's quite clear in King versus Smith, the Court specifically referred to predecessor regulation and said regulations of HEW, this is in footnote 16 of King versus Smith, regulations of HEW which clearly comport with the statute, restrict the resources which are to be taken into account under Section 602 to those that, "are in fact available to an applicant or recipient for current use on a regular basis."

This regulation properly excludes from consideration resources which are merely assumed to be available to the needy individual.

Moreover, the Court earlier this term summarily affirmed the decision by the Court -- the District Court in Connecticut in Salman versus Shapiro which is reported at 396 US file which held the HEW regulation valid and an inconsistent Connecticut practice to be invalid.

Moreover, we think that the HEW's approach is consistent with the purpose of the act which is to provide economic security to the five million plus children that are covered by this act.

It's a massive act.

This regulation is an important part of it.

The -- the whole program involves expenditure of over $2 billion by the Federal Government each year, a total expenditure close to $4 billion.

California statute we think conflicts with this regulation and since California has a statute that I already have referred to which says that when it's rules and regulations conflict the federal rules shall prevail, we think whatever the relevance of this supremacy clause that in this context the District Court improperly struck down the HEW regulation and improperly upheld the California approach.

California's approach of assuming support simply is contrary to fact in most cases.

Moreover, it is inconsistent with King versus Smith for the reasons that I've indicated earlier.

There's some language in that opinion that counsel might prefer to but that language is always accompanied by the reference to support in fact and while the Court referred to a legal obligation, it also referred to support in fact as coupled therewith.

The Court was referring King versus Smith, we think to a legal obligation of general applicability not the strange sort of thing that California sought to carve out.

Indeed, if California is right, Alabama could have avoided the decision there by just enacting a statute which said “Okay, substitute fathers have a legal obligation of support whether it was enforceable or not what difference it would have complied.”

Now, we don't think the Court intend to that King versus Smith.

We don't think that makes good sense.

Justice Potter Stewart: I think, he would followed from what California has done that the family would not be eligible for AFDC grants at all.

Justice Potter Stewart: You mean it would be the same as the situation in King and Smith.

Mr. Francis X. Beytagh, Jr.: That -- well --

Justice Potter Stewart: Because the families are eligible only if one parent is dead or absent.

Mr. Francis X. Beytagh, Jr.: That's correct.

If you pressed it to the ultimate they are making these people parents and by definition they're not eligible -- but California doesn't want that of course, because the statute we're talking about here is specifically tailored to AFDC and relates only to that context.

So, they are simply trying to reduce the benefits that people receive by assumed support they get from these men without any acts of proof of it, and I think that if California were pressed too, there are some state -- a couple of states have adopted statutes that at least as the stepfathers place a general obligation.

As to those we --

Justice Potter Stewart: And that makes the family --

Mr. Francis X. Beytagh, Jr.: As to those we would agree.

Yes, and that's Washington adopted statute and I think a couple of our states.

That's quite right.

Justice Byron R. White: You mean, if California had a general statute applying to the MARS that --

Mr. Francis X. Beytagh, Jr.: I couldn't really conceive one applied to MARS but stepfathers is a reason -- I think is a feasible thing as I indicated some states too.

And that makes the stepfather -- the regulation itself, the first part which I didn't read specifically provides that.

It says that born relation to a child's stepparent who is ceremonially married to the child's natural or adopted parent and is legally obligated to support the child under state law of general applicability which requires stepparents to support stepchildren to the same extent that natural or adopted are required to support their children.

Justice Byron R. White: But why would you say that was alright?

Mr. Francis X. Beytagh, Jr.: Well, I think the judgment is that you have then a real and enforceable obligation that's analogues to the obligation of a natural or an adoptive parent.

Justice Byron R. White: Well, if the state can substantiate the fact that there's a legal obligation to support the children in the house, his living in the house there's a legal obligation under the state law to support those children and if it's enforceable you would say the state regulation is alright?

Mr. Francis X. Beytagh, Jr.: Well, it has to be one that meets all the criteria that this regulation spells out which is one of general -- the person becomes just as natural or adoptive father or stepfather.

Now, most of these people simply don't want to be put in that position and I don't think most states are going to adopt --

Justice Byron R. White: Well no, but when you say that that would be alright, what you are really doing is assuming income.

Mr. Francis X. Beytagh, Jr.: But your -- well yes, and just as you're assuming income as to natural parent --

Justice Byron R. White: With a parent.

With their parent, with a natural parent living at home.

Mr. Francis X. Beytagh, Jr.: Right.

Justice Byron R. White: And then the parent moves out you no longer assume income, do you?

Mr. Francis X. Beytagh, Jr.: No, that's correct.

Justice Byron R. White: And but as long as he is at home you assume income.

Mr. Francis X. Beytagh, Jr.: That's correct.

Justice Byron R. White: Do you say you would be willing to assume income if the state had the proper law with respect to stepfather.

Mr. Francis X. Beytagh, Jr.: I think that that's a necessary conclusion, that's the way the regulation reads and for good or for bad, we have to support the regulation.

But I think that it coincides with the common sense.

Justice Byron R. White: You think it really -- you think this represents a professional expert judgment as to what likely reality is?

Mr. Francis X. Beytagh, Jr.: Well, I think that the idea is that when you have a man that's willing to do this much but then you have a more or less stable family unit that does not fit under the category --

Justice Byron R. White: But the experience would show that in the MARS situation it's just contrary to the reality assumingly.

Mr. Francis X. Beytagh, Jr.: I think so, I think that as soon as you try to put an obligation, a real obligation of support on these MARS people at least, their alternative is simply to get out and that California's statute both as to stepfathers and as to MARS provides that they have an obligation of support only when they're in the home, if they leave then they don't have an obligation, it evaporates.

Justice Byron R. White: Sure, sure well that's the result of this regulation has been to -- that some MARS have left.

Does that happen in one or two of these cases or why not?

Mr. Francis X. Beytagh, Jr.: I don't know whether it has been the result --

Justice Byron R. White: It must be that the California regulation has some real teeth in the thing.

Mr. Francis X. Beytagh, Jr.: Well, it has real teeth when it deprives people that need support of.

Justice Byron R. White: Well, I know that it deprives MARS out of the family must be because there's a real obligation as long as they stay there, then why isn't the statute --

Mr. Francis X. Beytagh, Jr.: No, the reason they don't stay there is because the money is cut off and since their income is assumed to be available but it is not really available because they have other children to support or whatever, then they move out because they are not in fact able to provide support.

Chief Justice Warren E. Burger: But I think there is another hypothesis for their moving out too and wasn't it one of the considerations in the development of the scheme namely that when they aid to dependent children stopped, the free boarder left because the income stopped.

Mr. Francis X. Beytagh, Jr.: Well --

Chief Justice Warren E. Burger: That didn't -- doesn't that show up in the legislative history?

Mr. Francis X. Beytagh, Jr.: Your Honor, I think it shows up in the early legislative history.

In King versus Smith, I think the Court made clear that the notion of punishing the kids by seeking to legislate morality for the mother had been abandoned by Congress in subsequent amendments.

Chief Justice Warren E. Burger: Well, I'm talking about the punishment of the children aspect, I'm talking about what you were addressing yourself to the reasons for the departure of this putative --

Mr. Francis X. Beytagh, Jr.: But to the extent that there is a notion of having stable family units, it seems to me that HEW's approach and not California fosters that because HEW's approach allows the reduction in the amount of benefit payments only when there is proof of actual income and therefore, when there is not actual income the MARS or the stepfather I assume will continue to reside with the children.

Now, to the extent that that's a value worth preserving, HEW's approach preserves, the California's does not.

California forces the man to move out of the house when he doesn't have income that helps support the children so that they won't receive the reduction, it won't be cutoff as to some of the people on this case were.

The reasons that we submitted and the reason stated in the brief, we think the District Court erred and the judgment should be reversed and remanded for further --

Justice Thurgood Marshall: Yeah, but the Supreme Court of California has a chance --

Mr. Francis X. Beytagh, Jr.: Alright.

Your Honor, my understanding is that Supreme Court of California has not had a chance to pass squarely on this.

There's some lower California Appellate Court --

Justice Thurgood Marshall: You don't know how they would construe their law on the later amendment to it.

Mr. Francis X. Beytagh, Jr.: That correct but I don't think that really the law needs too much construction perhaps counsel from California will illuminate us on this but the intermediate appellate court decision are quite ambiguous.

Frankly, they speak in terms of the obligation of support not being a general one that applies across the board but one tailored to AFDC.

Well, that's quite right it is one tailored to AFDC.

There was a case where one of these people said that this law was a deprivation of his right of property.

California couldn't do this and the Court said no that's not right, he is not being deprived of anything.

He simply -- his income is simply being assumed to have been transferred to the support of the children.

So, to the extent that this California authority, it's confusing and ambiguous but it at least raises questions as to whether the duty of support is anything more than a loser one.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr.Beytagh.

Mr.Linderman.

Argument of Jay S. Linderman

Mr. Jay S. Linderman: Mr. Chief Justice and may it please the Court.

I might -- I might start Mr. Justice Black in trying to answer your question regarding a determination by the Secretary of HEW of whether California is in compliance and if not, why not cut California off.

When this litigation started in the District Court, California officials were in the process then of trying to determine from HEW whether in fact, HEW felt that the California statute and regulations were in conflict and we were unable to even receive a definitive statement from HEW whether or not the secretary considered California to be in compliance or not.

And we urge the various correspondents on this subject was attached to our motion to dismiss filed in the District Court and we urge the District Court at that time that there is a procedure in the Social Security Act for resolving disputes between the states and HEW as to whether a state plan does or does not comply.

The secretary makes a determination of noncompliance.

The state is given the authority to petition the Court of Appeals for the particular circuit for determination of that specific issue.

We urge the District Court to allow us to do that or at least to first allow us to receive a --

Justice Hugo L. Black: It allows you to do what now?

Mr. Jay S. Linderman: To utilize the procedure set forth --

Justice Hugo L. Black: State?

Mr. Jay S. Linderman: In the Social Security Act provides a procedure for resolving a dispute between the states and HEW.

Justice Hugo L. Black: What is the --

Mr. Jay S. Linderman: What is the procedure?

Justice Hugo L. Black: Yes.

Mr. Jay S. Linderman: If HEW makes a determination of noncompliance of a state plan, the state may go to the Court of Appeals for the particular circuit in which the state is located.

Justice Byron R. White: May I just interrupt you for a moment.

It has to be formal disapproval about the state plan.

Mr. Jay S. Linderman: My understanding Mr. Justice is that it has to be a determination, the languages is a determination that --

Justice Byron R. White: Except but it does some kind of a formal determination?

Mr. Jay S. Linderman: A -- a formal determination.

Justice Byron R. White: They seek determination.

Is there a hearing, what happens there?

Mr. Jay S. Linderman: It -- in California what was happening at the time this suit started was considerable correspondence going back and forth between the governor and the director of the state primary social welfare.

Justice Byron R. White: Did he took by correspondent with the state officials and the HEW?

Mr. Jay S. Linderman: And the secretary at that time is Secretary Cohen.

Justice Byron R. White: But nothing in the way of a formal proceeding administratively before the board or something like that?

Mr. Jay S. Linderman: Nothing at that point because when the suit was filed, California was still in the process of trying to find out whether the secretary had even made a determination that California was not in compliance and then this lawsuit was filed in the middle of it, and we urge the District --

Justice Byron R. White: And we suggested that the review expressly provided that the statute in the appropriate Circuit Court of Appeals, a review of what?

Mr. Jay S. Linderman: Of the question of whether the state plan conflicts or conforms.

Justice Byron R. White: But wouldn't have to be reviewed some formal determination sometime?

Mr. Jay S. Linderman: I would assume so yes and that is what we were attempting --

Justice Byron R. White: I assume--

(Inaudible) --

Mr. Jay S. Linderman: I would assume that it is a written communicate from the Secretary of HEW that, dear Governor --

Justice Byron R. White: For example, would this be the case?

If your California officials had received from HEW a letter which said, we don't think that California plan complies with the federal regulations.

You could have judicial review on the Ninth Circuit of that letter of determination?

The HEW as I understand is only proceeded against two states and there's long history of this.

One is Connecticut and the other is Nevada, is that right?

Mr. Jay S. Linderman: Yes, Nevada.

Justice Byron R. White: Those are compliance proceedings.

Mr. Jay S. Linderman: This is --

Justice Byron R. White: They come into -- they come up to adjudication whether they can be reviewed has never been determined.

Mr. Jay S. Linderman: I think that's correct but what happened in the California instance was the state director of social welfare did receive a letter from the secretary, then Secretary Cohen setting forth various reasons why the secretary felt that California was not in compliance.

The director from California then wrote back to the secretary and said, “If this is a determination of noncompliance, then we respectfully request reconsideration but please tell us what it is that you are saying” and we never received a reply to that.

Justice Potter Stewart: Is that correspondence in the appendix here?

Mr. Jay S. Linderman: It's not in the correspondence Mr.Justice, it is attached to the motion to dismiss which the state filed in the District Court.

Justice Potter Stewart: So that would in the whole record that's here.

Mr. Jay S. Linderman: It's in the record but it's not in the appendix.

Justice Potter Stewart: And do you have statutory citation to this review procedure to which you refer?

Mr. Jay S. Linderman: I believe its Section 1116 of the Social Security Act.

I don't have the US Code citation but it is I believe its Section 1116.

Justice Hugo L. Black: Was it while the state and Federal Government when negotiation with reference to whether or not your state was in compliance that this suit was filed on the part of the led individual beneficiary in California?

Mr. Jay S. Linderman: I believe the timing Mr. Justice Black, the correspondence was in the summer of 1968, and the first of these two consolidated cases was filed in October of '68, but as far as the state was concerned, we had never received any definitive statement from the secretary as to whether we were or we're not in compliance when the lawsuit was filed.

Justice Hugo L. Black: Have you ever received ever since --

Mr. Jay S. Linderman: Never since, other the appearance of HEW as amicus in this proceeding alleging that we are not in compliance.

Justice Hugo L. Black: Between you and the alleged beneficiaries.

Mr. Jay S. Linderman: Pardon me.

Justice Hugo L. Black: As between California and the alleged beneficiary, that's the lawsuit now?

Mr. Jay S. Linderman: Right.

The lawsuit now is the alleged beneficiaries against the state alleging that the state is not in compliance with Federal law.

Chief Justice Warren E. Burger: Has any Court of Appeals has been called upon to act under this procedure?

Mr. Jay S. Linderman: To my -- I am not familiar with any Justice --.

Chief Justice Warren E. Burger: It hardly strikes me as an ideal way to litigate a complex legal questions that go directly on no record from an administrative determination to the Court of Appeals.

At least in all the other administrative reviews by the Court of Appeals there is a complete record.

Mr. Jay S. Linderman: I'm not certain that that's anymore improper or inappropriate method than coming directly to the United States Supreme Court to resolve the same question with not much more record.

Justice Potter Stewart: Well, actually that could be done, couldn't it in quite a different way if the executive branch of the United States of America cutoff a lot in California because you were not in compliance with the conditions under which those funds are made available under these categorical existence program.

California could then sue the United States of America in this Court as a Nisi Prius Court, is that right?

Mr. Jay S. Linderman: Yes, I would think so Mr. Justice Stewart.

Justice Hugo L. Black: Well, if United States voted that, do you think the alleged beneficiaries all over the state could sue you?

Mr. Jay S. Linderman: Could sue the state?

Justice Hugo L. Black: Yeah.

Mr. Jay S. Linderman: I'm not certain.

Justice Hugo L. Black: What's the difference with that lawsuit at this point?

Justice Byron R. White: Well, your state could have a Social Security wholly independent of ideal funds?

Mr. Jay S. Linderman: Of course, it could but I doubt very much.

I think I can speak for the state.

Justice Byron R. White: Not constitutionally speaking.

Mr. Jay S. Linderman: Of course, of course but I think I can speak for --

Justice Hugo L. Black: Would it have a right to administer, wouldn't it?

Mr. Jay S. Linderman: As it chose, I would think so.

Justice Potter Stewart: Subject to only the constitutional restrictions.

Mr. Jay S. Linderman: Constitutional restrictions would be the only one.

Justice Hugo L. Black: And as I understand it, there's no one to get challenge.

That there is no constitutional provision which will prevent California from spending its own fund in its own way, if it doesn't mix them up with the federal receipts.

Mr. Jay S. Linderman: Well, I think the appellants in this case are arguing that irrespective of the supremacy clause problem in the case that even assuming that there's no problem there that California is distributing its funds in violation of the Equal Protection Clause.

Justice Potter Stewart: Absolutely and that same argument would be made whether or not to any federal funds.

Mr. Jay S. Linderman: Definitely.

Justice Hugo L. Black: How do they raise it under the Equal Protection?

Mr. Jay S. Linderman: Their allegation is that the obligation which California places on MARS in a welfare home only as opposed to a MARS in a non-welfare home denies Equal Protection to the children in the welfare home and to the MARS in the welfare home.

Justice Hugo L. Black: That would raise a question purely under the state law.

Mr. Jay S. Linderman: They are raising the question --

Justice Hugo L. Black: And you could sue the state --

Mr. Jay S. Linderman: They are raising --

Justice Hugo L. Black: That wouldn't be tied up at all with the Federal Government's position in connection with compliance.

Mr. Jay S. Linderman: No, it would --

Justice Hugo L. Black: As I understand that lawsuit is based on quite a different theory.

Mr. Jay S. Linderman: Oh, it is.

But this is an aspect of their lawsuit also as the Equal Protection problem which assuming that California were running its own welfare program, not receiving federal matching funds presumably the same constitutional limitations are going to have to apply.

The only ones that would be eliminated would be the regulations of HEW and the act of Cardozo.

Justice Lewis F. Powell: I'd suppose that all of these was answered by Cardozo in that initial case in the Stewart Machine Company case back in 1936.

These are the conditions upon which the states would participate, the state need not participate.

They do participate unless -- to get federal funds, they must participate on the federal condition.

Mr. Jay S. Linderman: We don't question the fact that California must comply with valid HEW regulations and an act of Congress in order to be able to qualify to receive the federal funds.

We are not disputing that at all.

Justice Hugo L. Black: And suppose that's -- any question has been raised about that by anybody?

Mr. Jay S. Linderman: None whatsoever and nor do we question the authority of the secretary of HEW to issue rules and regulations to fill up the details of the Social Security.

Justice Hugo L. Black: If state wants to participate it would have to comply.

Mr. Jay S. Linderman: No question about it Mr. Justice Black.

Our position however is though that the secretary of HEW in his regulations has exceeded the scope of authority given to him by Congress in the Social Security Act.

We --

Justice Byron R. White: There is no question that that's controversy between that's involved in this case even though the parties of the State of California and the welfare benefit --

Mr. Jay S. Linderman: No question that that's the crucial --

Justice Byron R. White: There's no question that that issue is a case of controversy properly before this Court for decision making.

Mr. Jay S. Linderman: I would not -- I would conceive that yes.

My point initially was that there is an alternative procedures that the controversy could first be resolved in the Court of Appeals for the Ninth Circuit.

I assume though that even if that were resolved in the Court of Appeals for the Ninth Circuit that sooner or later it would reach here.

Justice Byron R. White: But you'd manage to do something somehow?

Mr. Jay S. Linderman: Yes.

The HEW regulation has two parts to it.

The first one is the secretary's definition of who maybe a parent which of course goes to the question of is the child a dependent child and eligible or not eligible for assistance.

Justice Potter Stewart: At all but that doesn't go to the question of the amount of money, it goes to the question of eligibility at all.

Mr. Jay S. Linderman: At all.

If the person is determined to be a parent, there is no eligibility with the exception of the unemployed parent and the optional AFDC --

Justice Potter Stewart: Well, with some if you have a chance but generally speaking if both parents are in the house ineligibility.

Mr. Jay S. Linderman: By definition, Social Security Act sets up AFDC eligibility for a child who is deprived of parental support because on the absence of a parent.

HEW in subsection A of its regulation 203.1 says that, the only person who can be a parent is a natural father, an adopted father or a stepfather who is legally obligated to support the child to the same extent as a natural or adoptive father.

If that's correct -- now California is not attempting to define children living with a MARS or stepfather as non-dependent children.

We are not trying to call the stepfather or the MARS a parent.

But under HEW's definition, the only thing California did wrong was to limit the stepparent liability to a stepparent in a welfare home.

If California had imposed an obligation on all stepfathers to support their children, then it seems to me that under the HEW regulation, California could determine all needy children in a home with a stepfather totally ineligible for aid and it certainly escapes me how the child -- the needy child in a welfare home derives anymore economic protection from the extension of the stepfather liability to a stepfather in a non-welfare home.

Justice Potter Stewart: But if you're right then you are violating the Federal law in a different way because you're spending federal money that you're not authorized to spend because you're giving it to children who are ineligible under the federal statute.

Mr. Jay S. Linderman: But we can easily remedy the situation Mr. Justice Stewart by simply exchanging our support obligation statute and making all stepfathers liable for the support of their children.

Justice Potter Stewart: As I say if you do that, then if you give any money to a family of the stepfather then you're making an unauthorized expenditure of federal money and you're violating the federal law.

Mr. Jay S. Linderman: Which to me would be frustrative of the purposes of AFDC which is to impose a support obligation on a stepfather in a relatively affluent family.

Certainly, it gives no economic protection to the child with a stepfather in a poor family.

It makes no sense but if the HEW regulation is valid, I think I can state with relative certainty that California will just extend its stepfather liability statute and cut off all children in stepfather homes.

Justice Thurgood Marshall: And that in turn will be litigated I assume.

Mr. Jay S. Linderman: I would assume.

Justice Byron R. White: Well, you won't care about unless the stepfather has an income.

Mr. Jay S. Linderman: Assuming an employed stepfather because if you were unemployed then the family would qualify under California's optional AFDCU in the argument.

Justice Byron R. White: You won't cut off anymore children as you are now?

Mr. Jay S. Linderman: We are not cutting off children now though Mr. Justice White, we're --

Justice Byron R. White: You are reducing payments by assuming the income of the stepfather.

Mr. Jay S. Linderman: We're reducing payments --

Justice Byron R. White: Availability --

Mr. Jay S. Linderman: Assumed availability because of the support obligation.

Justice Byron R. White: Sure, so you reduce the payments on accountability.

One, you wouldn't do it -- you wouldn't cut off anymore if you extend that your obligation is right across the board.

Mr. Jay S. Linderman: Some children living with stepfathers are still receiving aid because the stepfather's net income is insufficient to bring the family up to the states' maximum budget for the family.

But if we extend the stepfather liability to non AFDC family stepfathers, then the children in the AFDC family with the stepfathers are going to be totally cutoff.

There are now children in the AFDC stepfather family who are still receiving aid, all be it less aid because of the obligation of support on the --

Justice Byron R. White: What about the MARS?

Mr. Jay S. Linderman: It seems to me --

Justice Byron R. White: If your old law, you said you changed it, you put the obligation on him to do so --

Mr. Jay S. Linderman: The old -- it still does in a different fashion.

Justice Byron R. White: -- you've modified.

Mr. Jay S. Linderman: We've modified it but the statute which was the subject of litigation in the court below, the obligation was that the MARS had to support the children in his home.

Justice Byron R. White: Just like the stepfather does.

Mr. Jay S. Linderman: Like the stepfather and I would submit that if HEW thinks that you can extend statewide general law of amicability to a stepfather and thereby make no --

Justice Byron R. White: Can do it with the man.

Mr. Jay S. Linderman: Can do it with the man equally as well and in fact, I would think might have to do it not because of any moral antipathy to the common law marriage but if you don't do it, a man is crazy to marry the welfare mother.

Justice Byron R. White: But what the -- is the MARS issue a live, a real issue here?

Mr. Jay S. Linderman: Oh, I think very definitely so.

Justice Byron R. White: Because of back payments or what?

Mr. Jay S. Linderman: Yes, yes.

Justice Byron R. White: Is that all?

Mr. Jay S. Linderman: There --

Justice Byron R. White: Because the new regulation is not an issue in this suit?

Mr. Jay S. Linderman: No yet, there's -- no, it is not an issue in this suit but the same problem, the problem of assuming that there is a meaningful support obligation that's a different kind of obligation now.

But the same question of whether the obligation that California imposes is an enforceable one and a source of a resource to the child will remain even under the new regulation, it will take on different --

Justice Byron R. White: Don't you -- wouldn't you suppose though that as a matter of experience you could justify assuming income -- assuming availability of income where the real parent is living at home and have a wholly different experience with stepfathers or MARS who are living in the home, just in terms actual availability of income.

Mr. Jay S. Linderman: If your question is directed to the point isn't a natural father more apt to support his child than a stepfather, is that the gist of your question?

Justice Byron R. White: That's part of it, yes.

Mr. Jay S. Linderman: I would say, yes, if the kind of stepfather or the man in the house that California is talking about is the same kind of a man as Alabama had in King versus Smith.

Mr. Jay S. Linderman: Because the Federal regulation Mr. Justice White is not geared to the factual realities of who these men are that California is concerned with.

They are not the midnight visitor in King versus Smith who had a family of his own and nine children and no income.

Justice Byron R. White: I would think the invalidity of it might be is it permit the assumption of income or availability of income where there is a statewide law of general applicability if that's contrary to experience.

Mr. Jay S. Linderman: I think the Social Security Act compels assumption of income though where there's a law of support.

As this Court interpreted the purposes of AFDC in King versus Smith, it was to provide support for children without -- who could not --

Justice Byron R. White: Do you think it would be invalid under the Social Security Act for HEW to provide by regulation that income of natural parents, availability of income or the natural parent living in the home will not be assumed?

Mr. Jay S. Linderman: Yes, I think it would be invalid.

Justice Byron R. White: Under the statute?

Mr. Jay S. Linderman: Under the Social Security Act as interpreted by this Court in King versus Smith.

That Congress expects that when there is a breadwinner in the home that the breadwinner will support the child and the Social Security Act says that the state has to -- the second part of this is that the state has to determine the extent of need of the children in the home and the child is deemed less needy because of the resource which is assumed by Congress in view to the benefit of the child because of the support obligation.

Chief Justice Warren E. Burger: Mr.Linderman, I think you used the term that the assumption was compelled.

Now, that assumption also depends upon the enforceability of the support against this man in the house.

Is that a safe assumption or rational assumption that there is any real enforceability against the man in the house?

Mr. Jay S. Linderman: I think there is Mr. Chief Justice.

Chief Justice Warren E. Burger: How?

By suits against the man?

Mr. Jay S. Linderman: Yes.

Chief Justice Warren E. Burger: How many lawyers is it going to take the deal with the 500,000 people on welfare in Los Angeles alone?

Mr. Jay S. Linderman: I appreciate that problem but it's not any different than the child living with a natural father who may not support it.

The child or his mother has to sue the man not the state.

The state doesn't pay aid and then pursue the man.

The child has to get the money from the man.

Chief Justice Warren E. Burger: Does this record show what is the ratio of unemployed natural fathers whose children are receiving this aid as compared with the man in the house type of situation, any information on that at all?

Mr. Jay S. Linderman: Unemployed fathers, not that I know of Your Honor.

There are statistics that would indicate how many families we're talking about which contain -- the figures are July 1968 and at that time there were roughly 191,000 families -- AFDC families in California and of that there were 6,700 families with the stepfather and 2,800 families with the MARS.

A total of roughly 9,500 families out of 191,000 families but of the 191,000, I am not familiar with the statistics on how many of those are unemployed fathers.

What I'm trying to get at is that this assumption that you are talking about is based on further assumption of the enforceability against this man.

Mr. Jay S. Linderman: That's correct and it's the same assumption as applies with a natural father in the home and it's an assumption that there is an enforceability.

Chief Justice Warren E. Burger: But wouldn't you concede that it is easier to enforce that claim against the natural father by the usual traditional processes that it is against these transient men in the house.

Mr. Jay S. Linderman: But Your Honor by definition these men are not transients.

These are --

Chief Justice Warren E. Burger: By whose definition?

Mr. Jay S. Linderman: By the state definition before the application of the rule even can begin the person -- the man in the house by definition is living in the home and is, in stepfather case, ceremonially married to the mother or in the MARS case is living in the home and has either assumed financial obligations on behalf of the family or comports himself in the community as husband and wife.

And one of the crucial criteria of determining who is the MARS is that he has no other alternative place of residence.

Just as his family and to the extent that he is a trencher the moment he leaves the home the child is restored the eligibility.

Justice Thurgood Marshall: Mr. Linderman, do I understand you correctly that the child and the wife have to go to Court to get the support from the husband who left?

Mr. Jay S. Linderman: Who has left?

Justice Thurgood Marshall: Yes.

Mr. Jay S. Linderman: They would have to go to Court only to the extent to collect back payments that might be due.

Once the man leaves the house --

Justice Thurgood Marshall: In the California welfare system, you mean that welfare system doesn't do that?

Mr. Jay S. Linderman: Not to collect the back payments.

Justice Thurgood Marshall: You don't have a special department that that's all they do.

Mr. Jay S. Linderman: Not for the MARS or the stepfather.

Justice Thurgood Marshall: No, no I said for the legitimate father.

Mr. Jay S. Linderman: For the legitimate father, yes.

Justice Thurgood Marshall: So you go after him to make him pay his debts.

Mr. Jay S. Linderman: After he leaves the house.

Justice Thurgood Marshall: After he leaves his house.

Mr. Jay S. Linderman: After he leaves the house but not one of his --

Justice Thurgood Marshall: I thought you said the responsibility was upon the children?

Mr. Jay S. Linderman: While the man is in the house.

While the man is in the house be he a natural father or adoptive father or stepfather or MARS, the state does not pursue his resources for the child.

Justice Thurgood Marshall: Even if the wife applies for relief?

Mr. Jay S. Linderman: If the wife applies for relief in the natural father case and he is living in the home, relief is denied, they are ineligible by definition.

Justice Thurgood Marshall: The minute he leaves, the welfare makes him pay if they find that he has the money.

Mr. Jay S. Linderman: If they can find it.

But with MARS, the state does not pursue it because there's no more obligation and the state pays aid at that point in time.

The other one important resource which I think is unique in the West, particularly in California, in the case of the stepfather is that under California community property law, the earnings of the stepfather are community property in which the wife, the welfare mother has a vested present one-half interest.

Half of his earnings are hers.

Chief Justice Warren E. Burger: That's with the ceremonial marriage.

Mr. Jay S. Linderman: That's what the stepfather only.

Yes, after the ceremonial marriage, there is no community property in a putative marriage.

There is in a meretricious -- in the putative there is, in a meretricious there is not.

In other words, these people know they are not married, the MARS and the mother and there is no community property there.

If one of them harbors the mistake and belief that they are married, there can be community property there.

But I'm talking about the situation where the mother has ceremonially married the man.

Community property then attaches to his earnings, and half of his earnings are hers.

I would submit that if there is anything that is a resource which the Social Security Act commands California to consider in determining need, that is a resource.

Again, the mother may have to take legal action to protect her half interest, but that's no different than the mother living with the natural father of her children.

She also may have to take legal recourse but the obligation is clearly enforceable.

Justice Byron R. White: What specific language in the Social Security Act do you rely on for arguing that the Federal regulation is invalid?

Chief Justice Warren E. Burger: Do you have that in appendix to your --

Mr. Jay S. Linderman: Yes, it appears at several places.

It's in the appendix -- it's cited throughout all the briefs.

Chief Justice Warren E. Burger: I wanted a quick easy place where we can find it.

Justice Potter Stewart: What is the specific language?

Mr. Jay S. Linderman: I read the language.

The place is the first page of the appendix in the Government's brief.

This is Section 602(a)(7).

It's one of the series of requirements of the Social Security Act as to what state plan must provide and says that a state plan for aid and services to needy families with children must, underscore must, provide that the state shall in determining need take into consideration any other income and resources of any child or relative claiming aid.

Justice Potter Stewart: We're talking about income and resources.

Mr. Jay S. Linderman: Yes.

Justice Potter Stewart: Now, you are saying that the emphasis of that act have a regulation says that income and sources are not going to be assumed.

Mr. Jay S. Linderman: Exactly.

Justice Potter Stewart: That the statute requires that you assume that was Social Security?

Mr. Jay S. Linderman: Not assumed.

No, no, our position --

Justice Byron R. White: You're talking about income and resources of the child.

Mr. Jay S. Linderman: Yes, of the child or the mother.

See, it's income and resources of any child or relative claiming aid.

Justice Byron R. White: And who's claiming aid?

Mr. Jay S. Linderman: The mother and the child.

That's the child or the mother.

Justice Byron R. White: So you've got to say that income don't have to assume the availability of income from the MARS and stepfather.

Either to the mother of the child.

You said that Act requires that.

Whether it's a MARS in the house or stepfather in the house and the state has legal obligation that this Act requires that you assume that that income is available to the child.

Mr. Jay S. Linderman: Assume that it is available because it is a resource.

It's something in addition to prove an income.

Justice Byron R. White: Although, it is the natural resource must be factual.

Mr. Jay S. Linderman: But neither is the resource of the child living with a natural father.

The natural father may not --

Justice Byron R. White: That is the point for you and I would make the same argument that perhaps the HEW did say that it is the parent living in the house as I am going to assume.

Mr. Jay S. Linderman: As this Court pointed out in King versus Smith, if there is a legal obligation of support, proof of actual contribution cannot be determinative.

That's the language --

Justice Byron R. White: They may not be determinative of the -- you pick the regulation which requires proof of active contribution as invalid to --.

Mr. Jay S. Linderman: Yes, because it defines a child in California to be resourceless.

The child can have nothing other than the income that the state through some administrative miracle can --

Justice Byron R. White: As far as regularly and definitely, that would be the excuse to contribute anything to the support the child regardless of the legal obligation for him imposed by the state, is that what you were saying?

Mr. Jay S. Linderman: No, but the mother will undoubtedly kick the man out of the house.

Chief Justice Warren E. Burger: That's another assumption.

Mr. Jay S. Linderman: But it is a weapon.

Justice Byron R. White: That's not very relevant for a legal --

Mr. Jay S. Linderman: I think it is Mr. Justice White.

It's a weapon.

It's a method of enforcement of the obligation that the state is reducing the grant and the mother can say with real meaning support me or get out.

And the facts of this case, the complaints in this case despite their protestations that the men are not supporting the children in the house.

The complainants themselves admit that due to the emergency as the language that the plaintiff appellant used that due to the emergency caused by this state statute, the men are supporting the children until the statute is declared invalid.

The statute does work, it is enforceable and the men are supporting the children at least some of the names plaintiffs are and the record will show that.

The other fact is that in the case of the stepfather and presumably in the MARS as well.

It's literally impossible for them not to support them at least in some of these cases where the man has taken the welfare mother and her children into his home.

He has put a roof over their head which is the case in several of the named plaintiffs in this appeal.

The man has brought the children into his home.

Now, certainly to some extent, he is putting a roof over their head which is a lessened need for public expense to support that family.

Justice Potter Stewart: California does have a maximum grant regulation, does it not?

Mr. Jay S. Linderman: Under challenge.

Yes, it does have a maximum grant and the case has been argued before this Court.

Justice Potter Stewart: Right, and the --

Mr. Jay S. Linderman: Yes.

Justice Potter Stewart: And do you have -- if you work out a standard of need of your system and it varies as far as not with the kind of living, with the kind of shelter that they have?

Mr. Jay S. Linderman: There is a maximum amount of shelter need.

Although, there is another case in California on that issue, that the state law and the Social Security Act although the argument is compelled the state pay actual shelter needs.

But the -- the current system is that there are allocated specific amounts for each of the various needs, shelter, food, clothing, and so on.

Justice Potter Stewart: Right.

But with a maximum per family unit?

Mr. Jay S. Linderman: With a maximum per family unit up to the point, I believe it's ten children and from that point on there is $6.00 added per child after ten children which the attack of the statute is in that force is --

Justice Potter Stewart: --is violative of the Federal statute and violative of the Equal Protection clause of Fourteenth Amendment.

Mr. Jay S. Linderman: Yes.

Justice Potter Stewart: Thank you.

Mr. Jay S. Linderman: I believe Mr. Chief Justice through the questioning that I've covered most of the points that I wished to cover unless the Court has further question.

Chief Justice Warren E. Burger: Would it be fair to say that part of the problem or at least -- or part of the problem as to what extent leverage may be used against the children to enforce obligations against the adults?

Mr. Jay S. Linderman: I think that is somewhat fair.

Chief Justice Warren E. Burger: Would you -- would you state it in your own way?

Mr. Jay S. Linderman: I think the question is how much -- taking King versus Smith as the starting point of what it is and what is not allowable.

The child in a home where there is a legally obligated man -- a support obligated man, a burden may fall on that child because the person, the man may not be performing his duty.

To that extent, inherent in the Social Security Act, in the AFDC program is that the child may be harmed because of a delinquent father.

But so long as he remains in the house, the burden is the child's and our essential argument is that the support obligation which California imposes on MARS or stepfather in the house may put a burden on the child.

Although, we question that factually that does happen that often as we think the record in this case will show that it is not as absurd as the appellants would argue to expect that a man will support someone other than his own children.

But to the extent that there is a support obligation, the Social Security Act resubmit, makes that child either a non-dependent child because it's a natural parent or a less needy child because of a perhaps lesser support obligation, clearly enforceable but the extent of the obligation on the man may be less in terms of dollar amount.

The support obligation on natural father is without limitation.

The support obligation on the MARS and the stepfather, as the state computes the amount of the obligation may turn out to be a lesser amount than the amount the natural father would have to pay.

Chief Justice Warren E. Burger: Well, if you have a natural working father, if you let me put this hypothetically to you, a natural father who is working but who more or less regularly drinks up half of his earnings.

Then, we have deprived children then as a result, can they get aid to the dependent children while he is living in the house gainfully employed.

Mr. Jay S. Linderman: No.

Chief Justice Warren E. Burger: So that you have children who suffer as consequence of the conduct of the adults which is beyond the reach of Government.

Mr. Jay S. Linderman: The Social Security Act is only one of many programs to try alleviate poverty.

But to the -- it's limited, it is to provide support for children who do not have some breadwinner to look to.

It's not essentially that the breadwinner perform his duty of supporting the children.

Congress expected that the bread winner would support the children in his home.

California expects the same thing but the natural father or the MARS or the stepfather may spend his earnings on wine, women or so or whatever, the children may suffer but the social -- but the AFDC program is not the way that you solve that problem.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Linderman.

I am not sure whether there is any time left or not, my markings are not clear.

Mr. Anthony G. Amsterdam: Mr. Chief Justice and may it please the Court.

The basic issues in this welfare case have become somewhat clouded by the promulgation of new state welfare regulations since the beginning of the suit by the enactment of a new state statute since the decision below by the promulgation of proposed regulations under that state statute not yet in effect and by the variety of decisions taken by the parties and the amici in this Court.

For this reason, I think it useful at the outset to describe and to distinguish several different factual situations that is family situations which are represented by the several plaintiffs and the plaintiff's interveners in this case to identify the legal issues presented in each of those situations, and then to describe what is and what is not still an issue in this case.

Now, the appellants in this Court include the individual plaintiffs below, the individual plaintiff interveners below and the classes which they represent.

All of these persons are members of households which are eligible to receive or which claim eligibility to receive welfare benefits under the federally supported AFDC program that is Aid to Families with Dependent Children established by the Social Security Act.

In each case, the family unit which is eligible for such assistance consists of a mother and her natural children.

The children are under both federal and state law, dependent children because their natural father is continually absent from home.

It is that circumstance that is there being dependent children which renders them eligible for assistance if in addition to being dependent, they are also needy and it is that circumstance which requires the determination of the extent of their need for purposes of determining their assistance levels.

Now, in each of these cases, each and all, California has taken account in determining need of financial factors relating to the presence in the household of a man who is not the natural or the adoptive father of the dependent children.

I will come shortly to the legal basis for California's action for the present, it is important simply to know that the varying relations of the male figure to the children and to the mother create three distinct factual situations which have differing legal import.

The first of these is what we would call the stepfather situation, and the stepfather situation is a case in which the man in the house is ceremonially married to the mother.

This is the case of a plaintiff's interveners, the Bell family and the Sims family.

The second situation is what is in the jargon known as the MARS situation.

MARS is an acronym for Man Assuming the Role of Spouse, and this is a situation in which the man is not ceremonially married to the mother and is not the father of any of her children.

The third situation is the so called unmarried father situation.

The unmarried father situation is a case in which the man is not ceremonially married to the mother but he is the father of at least one of her children in the household.

Now, that child would not be the AFDC eligible child ordinarily because having both parents in the house it would be not be dependent.

There are special programs and situations in which he might be but for purposes of these cases, the AFDC child does not include that common child, but the common child is important because of the way California law treats these cases, the matter I will come to shortly.

The first thing I want to look at in all three situations though briefly is how federal law and particularly the federal HEW regulation which applies to this situation that is 45 CFR Section 203.1 treats these cases.

Under Federal law, the three cases are treated exactly the same.

That is to say that in all of them, if there are any actual contributions by the man, the MARS, the stepfather, the unmarried father to the support of the children, to the upkeep of the house; that is considered income to the household, what is known as the FBU Family Budget Unit, for purposes of computing whether or not the family is needy and the extent of the need.

However, no income maybe assumed to be received from any of these three male figures for purposes of determining eligibility as needy or for purposes of determining the extent of the need.

And this is so because under the relevant federal regulation, income maybe assumed to be coming to an eligible AFDC family only, if it is coming to a natural or adoptive parent of the AFDC children, or if it is coming to a stepparent who fulfills four criteria, that he be ceremonially married to the mother, that he be legally obligated to support the child, that that legal obligation be under a state law of general applicability, and that the state law be one which requires stepparents to support their stepchildren to the same extent that natural or adoptive parents are required to support their children.

Justice Potter Stewart: Now --

Mr. Anthony G. Amsterdam: Now --

Justice Potter Stewart: -- am I right in understanding that you've just been describing the HEW regulation?

Mr. Anthony G. Amsterdam: Exactly.

Justice Potter Stewart: Right, right.

Mr. Anthony G. Amsterdam: This -- a way -- what I'm doing is to describe its effect not yet with regard to California law, but to say the need of the three sets of situations here.

The HEW regulation would very plainly say no assumption of income.

Now, I'm describing the terms of that regulation --

Justice Potter Stewart: That's what I understood you would be describing, right.

Mr. Anthony G. Amsterdam: Now, the result of course is that all of these three situations in terms of assumption in income.

The MARS, the unmarried father not ceremonially married but the much more important aspect which also applies to stepfathers is that there is no here obligations under state law of general applicability which is to the same extent as the liability which California puts for the support on the natural father.

I want to come back and take those requirements report in detail because they're the nub of this case, but I want to pass to what California does with these three situations to indicate what I think is still a live issue in this Court.

At the time this suit was filed, California also treated all three situations the same.

That is to say that in each and every case, the stepfather, the MARS, the unmarried father, California said that, "any income which he received whether or not he actually contributed to the family was treated as income to the family after certain deductions were taken.

" He was allowed certain kinds of deductions spelled out in state law.

But once those deductions were taken, California law simply assumed that the rest of his income was available to the family and either deducted that amount from the need in order to reduce the welfare grant or if it reduced that so the family was no longer needy within the definition, the family simply became ineligible.

Now--

Justice Potter Stewart: Just so I can understand California's view on this, if an unmarried father were living as the husband of another woman and with eleven children of theirs, if he were an unmarried father of a child in an AFDC household with another mother and one child of that family, he would -- his income would be attributable to that second unit?

Mr. Anthony G. Amsterdam: Well, no, no.

I may not understand the question Mr. Justice Stewart.

The unmarried father situation only exists where the man is now living in this household.

If he is living in this household and has one child in common with the mother in this household, then he is an unmarried father.

Now the --

Justice Potter Stewart: I see.

It's only applicable if he's living in the household?

Mr. Anthony G. Amsterdam: That's right.

The effect of this regulation only deals if a man is in the house, that's the whole issue here.

Justice Potter Stewart: Alright, thank you.

Chief Justice Warren E. Burger: Well, he might be living in more than one household, is that not possible?

Mr. Anthony G. Amsterdam: Pardon me Mr. Justice --

Chief Justice Warren E. Burger: He might be living in more than one household, --

Mr. Anthony G. Amsterdam: We had no such situations in any of these cases.

That is California as far as these cases go, they are dealing with a situation where a man has a stable relationship in this one household.

Now, I have some very real question as to whether he might be living in one household -- more than one household for the purposes of characterization.

Obviously, he couldn't be more than one kind of a stepfather.

He's only ceremonially married to one woman at once except in extreme cases which we might conjecture.

As far as the MARS situation goes, I think he would not meet the MARS definition because he probably couldn't be holding himself out to be married, again and except the extreme situation that we might conjecture in a way, it would be treated as a MARS.

The unmarried father might very well end up by living in two houses because the only thing that is required is that he live there and that he has a child in the house, and if he in fact splits his time, then, he maybe in two households.

We have no such situation.

Now, the important change in California law is reflected by the enactment effective November 10, 1969 of a new statute which is set out on page 93 in the appendix to our brief which changes the California rules as to the MARS; that is the Man Assuming the Role of Spouse.

It is no longer the case that his income minus deductions is attributed to the family.

Now, he is required to make an agreement with the mother relating to the amount which he shall contribute and the statute requires that he makes a contribution which is no less than what it would cost to provide himself with an independent living arrangement.

All of this is governed also by proposed regulations.

And then -- the effect of the new California statute is to attribute to the family a proportion of the amount of that contribution payment which he is required to maintain.

Now, let me describe then the effect of this new statute on our three sets of situations.

One as to the stepfather, absolutely no effect; we are still talking at this point in time about Section 11351 which is a statute which this suit originally challenged.

It is still in full force in effect as to stepfathers.

And therefore as to all past and future matters, that is a live issue here with regard to the stepfather that is the plaintiff interveners here.

With respect to them what we seek in this case is a declaration of the validity of the federal regulation under the statute.

A consequent declaration by this Court of the illegality because inconsistent with statute on the constitution of 11351.

And if the court upholds the federal regulation, there's an end of 11351 because California has admitted from the beginning of this case that it was inconsistent with the federal regulations.

The court below so held and we think there's going to be no question about that, and in fact that also will be --

Justice William O. Douglas: That would result in the affirmance of those three.

Mr. Anthony G. Amsterdam: That would result in a reversal of the judgment below.

Justice William O. Douglas: But as respect to those three, you said that the court held that --

Mr. Anthony G. Amsterdam: The court held the federal regulation invalid and therefore allowed California to enforce its rules.

Justice William O. Douglas: As respect to these three?

Mr. Anthony G. Amsterdam: Pardon me Your Honor?

Justice William O. Douglas: As respect to the group you're now talking about?

Mr. Anthony G. Amsterdam: Yes, yes.

With respect to all parties at that time.

The new statute wasn't in effect and the decision was made as to all --

Justice William O. Douglas: But you are now talking about the regulation that was promulgated after this decision was made?

Mr. Anthony G. Amsterdam: No.

What was promulgated after the decision was made was not a new HEW regulation, not a new state statute.

Justice William O. Douglas: I understand, I understand, yes.

Mr. Anthony G. Amsterdam: As to that, there has been no determination below and I'm not asking this Court to rule on that, no that --

Justice William O. Douglas: You confused me because you referred us to page 93 of your appendix that has that new statute in it.

Well, I thought you were talking about that.

Mr. Anthony G. Amsterdam: No, I'm sorry.

The new statute simply raises the issue which I'm addressing at the moment of what's moot and what's not.

With regard to the old statute which is set forth in the first appendix to--

Justice William O. Douglas: I know where it is.

I understand the case, but I thought that you are all from the new statute, you are not?

Mr. Anthony G. Amsterdam: No, no.

I'm going to come now to the effect of the new statute which is that in the MARS situation --

Chief Justice Warren E. Burger: Now before you do that Mr. Amsterdam, what weight do we give the new statute except for purposes of possibly evaluating mootness of the case?

Mr. Anthony G. Amsterdam: Absolutely none.

I think that we would challenge the new statute or I'm about to say is I don't challenge it here.

Chief Justice Warren E. Burger: You do not challenge it now --.

Mr. Anthony G. Amsterdam: We are not and we do not and that's exactly what I want to say that with regard to the MARS situation, there is a question of mootness as to future relief.

On the other hand, the case is not moot because past payments which are a law borne to California law is still an issue up to date of a new statute with regard even to the MARS cases.

And what we ask this Court to do is to the MARS statute is that after reaching the issues in this case which are required by the presence of stepfathers that is holding the federal regulation valid and 11351 state statutes invalid, simply to remand the case to the District Court to allow the parties to frame the issues under the new statute, to challenge it if they please, see how the state regulation solidify and in effect, equitably clean up the case after this Court makes the major decision which we think is the validity of the federal regulation.

Chief Justice Warren E. Burger: Well, isn't there an alternative approach to it to and that's to just wash the case up and let the litigation resolve itself under the new regulations and statutes?

Mr. Anthony G. Amsterdam: Well this Court would have to remand if it resolved the case by holding the federal regulation valid.

The court would have to remand for disposition on a number of issues.

The amount of back payments and that sort of thing and --

Chief Justice Warren E. Burger: Well I didn't say we would have to, I mean it would be wise to do so.

Mr. Anthony G. Amsterdam: Oh, it would be ordinary to do so --

Chief Justice Warren E. Burger: Usual --

Mr. Anthony G. Amsterdam: I think appropriate in the sense that there are number of unresolved issues that would then be cleaned up.

But I think that this Court needs are not entangled itself, is only what I'm saying in any consideration of the new statute and my answer to the Chief Justice's question is precisely, that statute should have no effect here as to mootness or anything else.

Now --

Justice Potter Stewart: I'm a bit confused too.

Do I understand that the new legislation, your position is has no bearing whatever in the stepfather situation that's precisely as it was when the case was brought here?

Mr. Anthony G. Amsterdam: Exactly.

Justice Potter Stewart: And that that presents the question, the basic question of the validity of the federal regulation held invalid by the District Court.

Mr. Anthony G. Amsterdam: Correct.

Justice Potter Stewart: And also the validity of the state regulations or statute as the case maybe, but only in the stepfather situation?

Mr. Anthony G. Amsterdam: Well, that's unclear, that's the one additional point I wanted to make.

The regulations under the new statute for reasons it escaped me as a matter of the California law continue to treat the unmarried father as he was treated under the old law.

I see no basis in California law for that and I think we just got to wait and see and again, this is why it's going to go back to the District Court for resolution of these kinds --

Justice Potter Stewart: Well are you going to tell us, you've already told us that the stepfather situation, we needn't be concerned with the new statute?

Mr. Anthony G. Amsterdam: Absolutely.

Justice Potter Stewart: Well now, what is in the MARS situation and the unmarried father situation that the new statute says that makes doubtful whether those cases are here?

Mr. Anthony G. Amsterdam: Well, the new statute changes the entire method of California's treatment of income in those cases as it no longer is the case that the income to the male is treated as income to the family unit after deduction.

Now, there is a new requirement which is that he make a contribution which is described in detail, it has to be the same then he would make the support himself independently to the families and a percentage of that is treated as income.

We don't really know --

Justice Potter Stewart: Well, and because of this change I gather, there could be no conflict with the federal regulation if the federal regulation is valid?

Mr. Anthony G. Amsterdam: Oh, there may or there may not be but until we know what the new state proposed regulation --

Justice Potter Stewart: We needn't deal with it, is that it?

Mr. Anthony G. Amsterdam: It's not here now because we just don't know.

It's simply is not right as the answer I think --

Justice Byron R. White: -- written papers filed here?

Mr. Anthony G. Amsterdam: Pardon me?

Justice Byron R. White: Is any of this discussions about the new statute or the new regulation in the brief?

Mr. Anthony G. Amsterdam: We have both the new statute in the brief and that in the last appendix to our brief, the discussion of the effect of it, yes.

But not for the purpose having this Court decide.

Now, coming briefly to two sets of questions of letting in the federal regulation and the constitutional issues, I propose to start with the validity of the federal regulation.

I think that that is not with all due respect to the court below, very difficult question.

Let's take a look at what this regulation does and does not do.

It does not restrict in anyway state power to decide how much income a family has to have or lack before they are needy.

In that sense, the determination of need is left to the state that what is needy.

It doesn't restrict in anyway state power to limit how much of a family's need the state is going to supply.

As far as this regulation goes maximum grants and that sort of thing are unaffected.

Moreover, it does not restrict in anyways, state power to determine how much income or resources an AFDC family has for the purpose of determining whether it's needy.

Insofar as it weighs the actual income received, if any actual income is received, the federal regulation allows the state to treat it as income to the family.

What it does do is to deny the state, to treat as income and as its resources.

Moneys which are not proved to be actually available to the AFDC family except under specified conditions which are designed to assure that the situation is one in which even without proof of actual availability of money.

Meaningful economic protection of the AFDC child is support.

Now, I want to make very clear that I'm going to come to the specific regulation in a moment but a vitally important part of this case is that this particular regulation, the HEW regulation is only one sub species, a particularized aspect of a more general HEW regulatory policy.

Since 1967, HEW has provided that only income and resources that are in fact available to an applicant or a recipient for current use on a regular basis are to be taken into account in determining need and the amount of payment.

And for example, HEW says that in a case where a child has a support obligation under a court order from the father that the state may not free as income, the amount which the court has ordered to pay, unless it's actually paid.

Now, the importance of that in this case is that the ground of California's position here and the District Courts decision below doesn't just knock out this HEW regulation.

It would knock out every HEW regulation which announces the general or specific policies of non-assumption of income because what California says it has a right to do is to treat as an income to the AFDC family, any and every legal obligation created by state law without proof of actual receipt.

Now, HEW has found over the course of many years of administering this program, if there's one thing that have a bird in a bush and I would have a bird in a hand as far as an AFDC family goes.

There are lots of legal obligations that just don't come off and don't come through, and it is the purpose of the HEW regulation to assure that except in a vividly class of cases where one can be very sure that legal obligations are in fact likely to come through, that states are not going to be permitted to assume income.

Now, we think that the position of the court below in California is wrong.

Insofar as they purport absolutely to preclude HEW from limiting state power to treat non-received theoretically available resources as income to the family.

Our position is that the statute precisely because it requires the HEW to approve state plans which are required to provide for a consideration of income and resources, plus HEW to decide what kind of income and resources are meant by that and if HEW reasonably sets restrictions on what the state can assume in the way of income, those restrictions are valid.

Here in light of the shortness of time, I mean to refer to only two of the restrictions and show how obviously consistent with statute they are.

HEW following King v. Smith required that, before income be assumed, state law imposed a legal obligation, and that the legal obligation being a general one, that is under a state statute of general applicability and the same as the father.

Some just start with the same as the fathers.

Under California law as under MARS law, father's obligation is not defeasible if the father leaves the home.

He can be pursued and be required to support his child anytime, anywhere.

The obligation imposed by this particular California law exists so long and only so long as in the man is in the home, and that's true with regard to stepfather, MARS and everybody.

As soon as he leaves the house, the right ceases.

Now, of course HEW could require that California assure something like a parental obligation to support and not the half baked right that California has given children in the situations presented in this case because California -- HEW Cannon says must give them a full fledged right, one which is not useless simply because if a mother threatens to enforce it, the man leaves and there's an end of the right.

Justice John M. Harlan: I thought there was some dispute even with respect to whether the law is that even though he was in the house or there was a legally enforceable obligation.

Mr. Anthony G. Amsterdam: Mr. Justice Harlan, the Government --

Justice John M. Harlan: -- by the brief exactly --

Mr. Anthony G. Amsterdam: That's one of the issues -- with more time I might have tried to clarify somewhat more.

We don't take that position and candidly it's for this reason.

You've got three California judges below, the California District Court; they said it was an enforceable obligation.

There is no California law one way or the other that square on it.

There is a recent case that is cited in the California's brief that I might give the court a full --

Justice John M. Harlan: You don't have to do that because I understand your position --

Mr. Anthony G. Amsterdam: Fine, and we need only relayed and not got this regulation on the proposition that the duty of support is not the same and it's not under a generally applicable statute, an additional reason why the Secretary could insist that the obligation be the same is fairly evident from the facts of this case.

It is an affirmative purpose of this statute to keep families together.

If California is permitted to put in a regulation which says that “income is to be assumed because a man is required to support children only when he's in the home” the effect of that is to drive him out of the home.

In two of these cases that's what exactly happened.

Now to prevent this result and to assure economic security, HEW, it is our position could properly promulgate this regulation it is valid and accordingly the state statute inconsistent with it is invalid.

I should like at the beginning to indicate that the Government's position with respect to the significance of the new California statute and question of mootness is as stated by Mr. Amsterdam, we feel the case is not moot.

The essential questions presented to the court when prior to the enactment of the California statute are still here, those basic questions relate to the validity of the HEW regulation.

We agree as well that the most appropriate course would be for the court as to the effect of the new California statute assuming the reversal of the decision below to remand it to the lower court for the proceedings to determine just what that particular statute means as to those situations affected by it.

Chief Justice Warren E. Burger: I'd like to ask you one question Mr. Beytagh that may give me a better background to understand some of the problem independent that whatever right the parties have laying other side for the moment.

Can you tell us whether in a given situation, if a state program under its statute is not in compliance with HEW regulations whether the federal Government may terminate the grants to the state and terminate participation in the program?

Mr. Francis X. Beytagh, Jr.: My understanding is that the federal Government can do that, yes.

Chief Justice Warren E. Burger: And that would produce a result that was across the board would it not?

Mr. Francis X. Beytagh, Jr.: That's correct, and a result that of course is not one which is desired either by the federal Government or I would think by the state.

Chief Justice Warren E. Burger: Obviously result with a great deal of disaster involved in it but this is the hold which the federal program has on each of the states basically, is it not?

The statute clearly sets out the responsibilities of the Secretary and one of those responsibilities is to pass on state plans and very elaborate scheme is set out for the state plans and what they should entail.

Chief Justice Warren E. Burger: Isn't that the best method of enforcement of federal regulations rather than piecemeal litigation by individual recipients?

Mr. Francis X. Beytagh, Jr.: I think it may well be a better means of effectuating that.

However, the situation that we have here as the court well knows came out of its decision King versus Smith prior to that time, HEW had not felt itself in a position to enforce rigidly on the states, the rules that it had promulgated bolstered by King versus Smith, the Alabama substitute father case, HEW has now sought to enforce those regulations in this case of course came along at this time.

We attempted to intervene below and we were not permitted to do so and therefore we are appearing in the --

Chief Justice Warren E. Burger: In this case --

Mr. Francis X. Beytagh, Jr.: Yes.

Chief Justice Warren E. Burger: You attempted to intervene, yes.

Justice Byron R. White: Well, may I ask you?

Even if the HEW regulation is valid contrary to the conclusion of the three-judge court, do I understand your answer to the Chief Justice to mean this that if California persists with its regulation, the only consequence is that it may forfeit its federal contribution?

Mr. Francis X. Beytagh, Jr.: I don't think that that's the only consequence -- the consequence would be that the Secretary would have the option of terminating a program as to California, in fact do that or not I don't know because --

Justice Byron R. White: Well, are you taking the position that there's before us not only the question of the validity of the federal regulation, but assuming that we conclude contrary to the three-judge court that it is valid that we must also determine the validity of the state regulation?

Mr. Francis X. Beytagh, Jr.: I don't think that's necessary because there's so a reconcilable and necessarily in conflict that California --

Justice Byron R. White: Well I know, they maybe in conflict but does that make the California regulation invalid or does it mean only that the Secretary may then exercise the option to cut off the federal contribution?

Mr. Francis X. Beytagh, Jr.: No.

But the Secretary is authorized by provisions of the Act to promulgate rules and regulations to implement it.

He has done this in promulgating this regulation that we have before us now, and I think the District Court --

Justice Byron R. White: And if it's valid, does that then supersede so as to make invalidly the California regulations?

Mr. Francis X. Beytagh, Jr.: Yes, I think it does under the Supremacy Clause.

Justice Byron R. White: Well that goes a little further than just forfeiture of the federal contribution in it, doesn't it?

Mr. Francis X. Beytagh, Jr.: No.

It seems to me all that it results in is that California must have a program as some 40 --

Justice Byron R. White: Then, all we -- how do we then declare their regulation invalid that's what I'm trying to get at?

Mr. Francis X. Beytagh, Jr.: Well, if the HEW regulation is held valid by this Court --

Justice Byron R. White: Yes.

Mr. Francis X. Beytagh, Jr.: Then the California statute is necessarily invalid since it's inconsistent that way --Now California --

Justice Byron R. White: It's not invalid if California wants to go on its own without any federal contributions in it?

Mr. Francis X. Beytagh, Jr.: No, that's correct.

But the likelihood of --

Justice Byron R. White: Well, then all we hold is that the cost of federal regulation is valid if we do, that then leaves the Secretary in a position where he can say to California, “Now you get rid of that regulation of yours so you don't get any federal contribution.”

Mr. Francis X. Beytagh, Jr.: That's correct, just as in the Alabama case, Alabama after King versus Smith could have I suppose said that it no longer wanted to have anything to do with the federal program and gone off and continued to have its substitute father rule.

Justice Byron R. White: Well this isn't the kind of preemption supersession whatever words you want to use.

Now, we ordinarily have when there's a conflict between a federal regulation and the state regulation as in the Avocado cases for example.

Mr. Francis X. Beytagh, Jr.: No, that's true, but I think we have to look at the thing in context.

The California statute is written specifically to apply only in federal AFDC program cases.

It was obviously designed for that purpose, that's the only situation in which it applies.

Now, California if it didn't like the HEW regulation could obviously draft another statute entirely unrelated to the federal program for welfare assistance, but I think the practical likelihood of that happening is very remote.

The federal assistance here is substantial as Your Honor knows and I think that the state simply couldn't function anywhere near a reasonable level that it didn't have a federal matching assistance.

Justice John M. Harlan: It seems to me that the long and short of what you say here is that the government cannot force the state to make payments, according to its regulations.

Mr. Francis X. Beytagh, Jr.: I think that's correct Your Honor.

It's a program of assistance.

Justice John M. Harlan: And how could we determine the questions here such as are presented in this case?

Justice John M. Harlan: To determine, I suppose this and it's regulations is valid, the state regulation is contrary to it that whatever the state wants to do they cannot use federal money.

Mr. Francis X. Beytagh, Jr.: That's -- or at least that the Secretary has the option of cutting them off for failure to comply --

Justice John M. Harlan: Hasn't -- there's a matter of supremacy of the law.

Mr. Francis X. Beytagh, Jr.: Yes.

Justice John M. Harlan: The state can't use federal money --

Justice Hugo L. Black: As a matter of federal supremacy, all he can do is go pay these people himself he can't support California to mix up its fund to the federal money and then according to the federal business desires.

Mr. Francis X. Beytagh, Jr.: Well the Act requires that the state be in compliance with --

Justice Hugo L. Black: Yes, but it can if it wants to.

Mr. Francis X. Beytagh, Jr.: That's correct.

Justice Hugo L. Black: And that's all.

Mr. Francis X. Beytagh, Jr.: That's correct.

The essence of this case is the validity of the regulation promulgated by HEW which provides in substance that only actual support payments, the actual contributions made to AFDC families should be taken into account in determining the level of need as Mr. Amsterdam has indicated.

Justice Potter Stewart: And suppose the thrust of these various questions is that the effect that the effect that this litigation may be premature that not until or unless the Secretary of HEW cuts off funds to California on the basis of his regulation, would that regulation or of its validity become a litigable question?

Mr. Francis X. Beytagh, Jr.: I think that would be a rather harsh approach --

Justice Potter Stewart: It would be a harsh approach as contrary to King against Smith, but certainly there's a great deal of logic in it isn't it?

Mr. Francis X. Beytagh, Jr.: Well, there's some logic in it but in the meantime, you would have to force the Secretary to terminate a program --

Justice Potter Stewart: No, you wouldn't force him if he wants to continue to pay out the money, then he is just not relying on his regulation.

Mr. Francis X. Beytagh, Jr.: But then, there's no way -- there's no way that then the Secretary could get the validity of his regulation litigated.

Chief Justice Warren E. Burger: This could be alright.

Justice Potter Stewart: That's up to him.

Mr. Francis X. Beytagh, Jr.: Well, the Secretary doesn't think that's alright and with all respect, I don't think he should have to.

It seems to me --

Justice Potter Stewart: This is a very strange thing.

This, in no way does this California regulation violate federal law but constitutional question aside, Equal Protection question aside.

It simply violates it's alleged a condition on the payment of federal money.

It doesn't violate anything in the Supremacy Clause or any preemptive thing.

It's just a condition that it has to meet to receive federal largess.

Justice Hugo L. Black: The state merely refuses to go in to partnership with the federal Government on its terms.

Mr. Francis X. Beytagh, Jr.: Your Honors with all respect, I think that this legislation --

Justice Hugo L. Black: And it has a right to do so, doesn't it?

Mr. Francis X. Beytagh, Jr.: We don't disagree with that.

We agree that it has a right to do so but as to the question of rightness, it seems to me that forcing the federal Government to cut off the funds to a state that does not want to comply with what HEW feels is a reasonable regulation promulgated pursuant to the authority of the Act, the Secretary is charged with administering, is not a desirable way to go about handling this matter and the court, it seems to me decided that in King versus Smith.

Mr. Francis X. Beytagh, Jr.: Chief Justice and may it please the Court.

In view of the few minutes remaining to me, I'd like to turn first to the substance of the position of the Government which in essence says that the court below improperly determined that that the HEW regulation in question here conflicted with the statute.

If time permits, I should like then to have an opportunity to respond further to the jurisdictional point that Mr. Justice Stewart raised yesterday.

The statute that is in question here is Section 402 (a) 7.

It's reprinted in the Government's -- the appendix to the Government's brief in pertinent part, it provides that a state plan for aid and services to needy families with children must provide that the state agency shall in determining need take into consideration any other income and resources of any child or relative claiming aid to families with dependent children.

The HEW regulation construes that critical language any other income and resources as meaning actual income, actual contributions made by stepfather or a MARS.

California's approach is to the contrary.

They assumed that where there is a stepfather or a MARS that his income is attributable and is a resource of the child without any actual proof.

That's the essence of the controversy here.

Now, California agrees and the court below agreed that if HEW's regulation is valid, as a proper implementation of the act, that California's conflicting statute must necessarily fall in the sense that California can no longer continue to be entitled to receive benefits should the secretary determine to cut them off.

Justice Potter Stewart: Under the Federal regulation, so I understand it, it would be incumbent upon California to prove or to show or to ascertain to its own satisfaction perhaps, how much in fact your stepfather or the man assuming the role of spouse actually does contribute.

Mr. Francis X. Beytagh, Jr.: That's -- that's correct Your Honor.

I think there are three positions that you could take, one is California which is essentially an irrebuttable presumption of support --

Justice Potter Stewart: Right.

Mr. Francis X. Beytagh, Jr.: From the very fact --

Justice Potter Stewart: It's an attribution of support by what [Voice Overlap].

Mr. Francis X. Beytagh, Jr.: The other is an approach that could be regarded as consistent with the HEW regulation but I don't think it is, that is if the burden of proof is on the recipients to show that the income was not actually received.

Justice Potter Stewart: Well, that's what I was --

Mr. Francis X. Beytagh, Jr.: But -- but our view is that the regulation -- the language of the regulation speaks in terms of actual contributions and income actually received and attempts to track King versus Smith in this respect, so I think that it's the third category which is that the burden of proof is on the state to show that the income was in fact received so as to reduce -- in extreme cases --

Justice Potter Stewart: I suppose this might vary from months to months and even from week to week or even from day to day.

Mr. Francis X. Beytagh, Jr.: Yes, and California has raised the question that we think is reasonable question here about seriousness of the administrative burden.

Justice Potter Stewart: Yes.

Mr. Francis X. Beytagh, Jr.: Now, we have checked as best we can, HEW has checked on my behalf determined that some 40 states have programs that do exactly this, to track the HEW regulation.

I have attempted to ascertain whether the feeling of these states and their administrators is that that's a practicable way to proceed, and the answer has been yes.

It's not a complete survey but as best we could sample it.

Justice Potter Stewart: Well, how do they deal with the fact this maybe a changing pattern?

I mean, the stepfather may have all good intentions and one month might contribute, the next month he might stop at bar and grill and drink up or gamble away all the money and not contribute that month.

What is the --

Mr. Francis X. Beytagh, Jr.: Most of them proceed as we proceed in the income tax context, they require self disclosure and self reporting.

Perhaps to the surprise of some, they've found that in most cases this works.

That people receiving welfare benefits are prepared and do disclose honestly what income they do receive from other sources.

This is the basic trust of President Nixon's welfare message, the notion of self reporting and self disclosure.

Besides that there are case workers that proceed to investigate and talk to these people.

They talk to the man and they talk to the women, whatever.

The problem there is very significant, there's no doubt about it but most of the states have not thought that they are insurmountable.

Justice Hugo L. Black: Do you know of any case in this Court where it has ever held, where two litigants have a controversy among themselves, there can be a case or controversy within the constitutional sense, when one of them has the right to settle the case on his own territory?

Justice Hugo L. Black: Well, the Government here has a right to decline that the state have money.

Mr. Francis X. Beytagh, Jr.: That's correct?

Justice Hugo L. Black: What's the case --

Mr. Francis X. Beytagh, Jr.: The Government is not a litigant in this case Your Honor.

Justice Hugo L. Black: It's not a litigant but it's involved.

Mr. Francis X. Beytagh, Jr.: It's involved, that's correct.

Justice Hugo L. Black: And that's what you try and decide.

Mr. Francis X. Beytagh, Jr.: But the litigation here --

Justice Hugo L. Black: What should be a controversy between the Government and the state and the state can determine for itself whether it accepts the money.

Mr. Francis X. Beytagh, Jr.: Your Honor --

Justice Hugo L. Black: Why should that be a case of controversy which calls for the attention of this Court?

Mr. Francis X. Beytagh, Jr.: Well, Your Honor, I think that the controversy is between the people who consider themselves entitled under the federal statute.

Justice Hugo L. Black: But they're trying to get around by -- around at all by saying, “Well, the state would do what it should, we'd get our money”.

Mr. Francis X. Beytagh, Jr.: Your Honor --

Justice Hugo L. Black: The state doesn't have to do it.

The state can decline to do it and the Government can decline to that amount of money.

Mr. Francis X. Beytagh, Jr.: Well, the state can theoretically decline a debt but California like virtually every state has a specific statute that says that if any of their statutes and rules and regulations in the welfare context are inconsistent with Federal rules and regulations, the Federal rules and regulations shall prevail.

So, while theoretically California may be in a position to simply remove itself from the Federal program however impractical as a practical matter, they have made this judgment.

Why should this Court with all the burdens it has multitudinous cases that are becoming before, undertake a case of controversy when there is not a case of controversy between the two main persons who are interested in this, namely the state and the Government.

Mr. Francis X. Beytagh, Jr.: Your Honor, I think Congress intended when it passed the Social Security Act for needy.

Justice Hugo L. Black: Social Security is a different thing.

Mr. Francis X. Beytagh, Jr.: This --

Justice Hugo L. Black: Why do you collect your money for social security?

Mr. Francis X. Beytagh, Jr.: This is a part of the Social Security Act enacted in 1935 as Your Honor knows and this AFDC program has been in existence since that time.

Congress intended I think it's quite clear.

Justice Hugo L. Black: That's an obligation on the part of the Government, isn't it?

Mr. Francis X. Beytagh, Jr.: It's an obligation on the part of the --

Justice Hugo L. Black: Federal Government.

Mr. Francis X. Beytagh, Jr.: That's correct, to assist the state.

Justice Hugo L. Black: This is an obligation to a certain extent on the part of the state, to certain extent on the part of the Federal Government under to be -- based on agreement which they can reach or not reach as they seek it.

Mr. Francis X. Beytagh, Jr.: But they've all seemed fit to do that and they all as we know is practical matter --

Justice Hugo L. Black: The controversy here as to what the state can do and what the Federal Government can do.

Mr. Francis X. Beytagh, Jr.: Well, I think there's a very real controversy, these people --

Justice Hugo L. Black: The Government has its own sanction in its own hand.

It can stop paying the state any money.

Mr. Francis X. Beytagh, Jr.: Well, in this particular case, these people claim benefits and the claimed that California --

Justice Hugo L. Black: Yeah -- yeah, right indirect claim benefit, you get a lawsuit settled between the state and Federal Government.

Mr. Francis X. Beytagh, Jr.: Well, Your Honor, I understand the difficulties with this Court not wanting to become the Court of last resort and welfare disputes.

Justice Hugo L. Black: Well, why won't this place us right there?

Mr. Francis X. Beytagh, Jr.: I don't think it will place you right there Your Honor.

It seems to me that if the law in this area is clarified so that the states understand the obligations they have and I think King versus Smith went a long way in that direction.

Justice Hugo L. Black: If the states understand it, why should we have to decide it?

Mr. Francis X. Beytagh, Jr.: What I'm suggesting is that when cases like this are decided, it will be clear what the obligations of the states are.

Justice Hugo L. Black: To that extent, but they change with these changing dates.

We need the changing litigants.

Mr. Francis X. Beytagh, Jr.: Well, Your Honor with all respect I don't think that the federal approach is changed the thing and so long as the Court establishes that the federal construction of the Act is the appropriate one in this area, then the state will necessary have to abide by it.

And I think California and New York and the other states have already made this judgment.

Justice Hugo L. Black: We will have to abide by it, and if we don't the Government has its relief in its own hand.

It can decline to let him have the money.

Mr. Francis X. Beytagh, Jr.: That's correct but that's circular because they've already made this judgment unless California resends the statute, it's made a judgment that it will exceed to the Federal rules and regulations.

Justice Hugo L. Black: And the Federal Government can at this moment withdraw its funds.

Mr. Francis X. Beytagh, Jr.: Correct.

And that's correct they can but whether that's a reasonable or practical courses would carry not just --

Justice Hugo L. Black: Probably more reasonable and to get this Court mixed status in every welfare case that arises in the whole range of this Court.

Mr. Francis X. Beytagh, Jr.: But the approach you suggest would carry over to every Federal matching grant program Your Honor and would simply say that there's no justiciable controversy here and that the way to proceed is for the Federal Government always to cut off funds and I don't think the Court has proceeded that way in the past and I don't think that it's a reason.

Justice Hugo L. Black: We haven't had this case before.

Mr. Francis X. Beytagh, Jr.: Your Honor with all respect in King versus Smith, the Court said there is of course no question that the Federal Government unless barred by some controlling constitutional prohibition may impose the terms and conditions upon which its money allotments to the state shall be dispersed and that any state law or regulation --

Justice Hugo L. Black: It is supported by this Court would deny that statement?

Mr. Francis X. Beytagh, Jr.: And that any state law or regulation inconsistent with such federal terms and conditions is to that extent invalid.

Justice Hugo L. Black: Yes, when it's raised in a case of controversy.

Mr. Francis X. Beytagh, Jr.: Well, I think that King versus Smith was as much a case of controversy as the present case.

Justice Potter Stewart: Is there any --

Justice Hugo L. Black: No, even if it was, there's no sign we should continue to be bound by if it's wrong.

Mr. Francis X. Beytagh, Jr.: No, I'm suggesting Your Honor that if the Court clarifies the questions raised in this case and other cases that there's no reason to expect that the Court will continue to be involved year after year in these disputes over the welfare law.

Once the secretary has his authority made clear, I think that it's reasonable for the Court to expect that he allied.

But there have been serious questions about this, they have been raised in litigation and they are before the Court presently.

Justice Hugo L. Black: But the custom is now arrived whereby everybody bringing every kind of welfare case for this state bringing in a lap number of controversies that we are simply not capable on account of the lack of numbers, the lack of scope to handle.

Chief Justice Warren E. Burger: I suppose it's complicated somewhat for the fact that the statute is now amended and the regulations are amended.

And so, we'll have a whole new set of statutes and regulations to deal with this.

Chief Justice Warren E. Burger: There are a new set of regulations of HEW are there not?

Mr. Francis X. Beytagh, Jr.: Well, there is not any new set of regulations there on the question here at issue --

Chief Justice Warren E. Burger: How about the new California statute?

Mr. Francis X. Beytagh, Jr.: Well, the new California statute as Mr. Amsterdam discussed yesterday does raise with respect to parts of the controversy before the Court, some questions that have to be resolved I think on remand by the District Court but it doesn't do away with the entire matter here.

It doesn't touch the step father questions and California is continuing to act as far as we know under the old statute.

They have not yet promulgated regulations -- officially adopted regulations.

Chief Justice Warren E. Burger: When does the new statute go in to effect again?

Mr. Francis X. Beytagh, Jr.: Well, the new statute was enacted in November 1969 and we agreed that there are questions that properly should be probed as to that statute and its effect on the MARS, man assuming the role of a spouse because that's all that it relates to by the District Court and we suggest to that extent to the remand of that Court would be appropriate but that doesn't (Inaudible) --

Your Honor, I really have had a chance on behalf of HEW to make the affirmative argument and could I have several minutes to do so?

Chief Justice Warren E. Burger: The affirmative argument on --

Mr. Francis X. Beytagh, Jr.: On the validity of its regulation.

Chief Justice Warren E. Burger: For how long do you think you'd need?

Mr. Francis X. Beytagh, Jr.: About five minutes.

Chief Justice Warren E. Burger: I will grant you five minutes and extend accordingly.

Mr. Francis X. Beytagh, Jr.: Thank you, Your Honor.

Chief Justice Warren E. Burger: We can trade on that.

Mr. Francis X. Beytagh, Jr.: We think that the regulation is valid for a number of reasons.

First, we think that the presumption of validity always attaches and as this Court has said a number of times to the administrative interpretation by a Government official charged with the responsibility for administering a particular act.

As Mr. Amsterdam indicated yesterday, the same approach, the approach of requiring proof of actual income before reduction of benefits has been applied across the board in other categorical public assistance programs by HEW.

Moreover, we think that in 1967 Congress at least implicitly approved the HEW regulation when it reenacted the Act and in an act of certain amendments to these provisions knowing what HEW's construction had been and not seeking to change it.

Moreover, we think that it's quite clear in King versus Smith, the Court specifically referred to predecessor regulation and said regulations of HEW, this is in footnote 16 of King versus Smith, regulations of HEW which clearly comport with the statute, restrict the resources which are to be taken into account under Section 602 to those that, "are in fact available to an applicant or recipient for current use on a regular basis."

This regulation properly excludes from consideration resources which are merely assumed to be available to the needy individual.

Moreover, the Court earlier this term summarily affirmed the decision by the Court -- the District Court in Connecticut in Salman versus Shapiro which is reported at 396 US file which held the HEW regulation valid and an inconsistent Connecticut practice to be invalid.

Moreover, we think that the HEW's approach is consistent with the purpose of the act which is to provide economic security to the five million plus children that are covered by this act.

It's a massive act.

This regulation is an important part of it.

The -- the whole program involves expenditure of over $2 billion by the Federal Government each year, a total expenditure close to $4 billion.

California statute we think conflicts with this regulation and since California has a statute that I already have referred to which says that when it's rules and regulations conflict the federal rules shall prevail, we think whatever the relevance of this supremacy clause that in this context the District Court improperly struck down the HEW regulation and improperly upheld the California approach.

California's approach of assuming support simply is contrary to fact in most cases.

Moreover, it is inconsistent with King versus Smith for the reasons that I've indicated earlier.

There's some language in that opinion that counsel might prefer to but that language is always accompanied by the reference to support in fact and while the Court referred to a legal obligation, it also referred to support in fact as coupled therewith.

The Court was referring King versus Smith, we think to a legal obligation of general applicability not the strange sort of thing that California sought to carve out.

Indeed, if California is right, Alabama could have avoided the decision there by just enacting a statute which said “Okay, substitute fathers have a legal obligation of support whether it was enforceable or not what difference it would have complied.”

Now, we don't think the Court intend to that King versus Smith.

We don't think that makes good sense.

Justice Potter Stewart: I think, he would followed from what California has done that the family would not be eligible for AFDC grants at all.

Justice Potter Stewart: You mean it would be the same as the situation in King and Smith.

Mr. Francis X. Beytagh, Jr.: That -- well --

Justice Potter Stewart: Because the families are eligible only if one parent is dead or absent.

Mr. Francis X. Beytagh, Jr.: That's correct.

If you pressed it to the ultimate they are making these people parents and by definition they're not eligible -- but California doesn't want that of course, because the statute we're talking about here is specifically tailored to AFDC and relates only to that context.

So, they are simply trying to reduce the benefits that people receive by assumed support they get from these men without any acts of proof of it, and I think that if California were pressed too, there are some state -- a couple of states have adopted statutes that at least as the stepfathers place a general obligation.

As to those we --

Justice Potter Stewart: And that makes the family --

Mr. Francis X. Beytagh, Jr.: As to those we would agree.

Yes, and that's Washington adopted statute and I think a couple of our states.

That's quite right.

Justice Byron R. White: You mean, if California had a general statute applying to the MARS that --

Mr. Francis X. Beytagh, Jr.: I couldn't really conceive one applied to MARS but stepfathers is a reason -- I think is a feasible thing as I indicated some states too.

And that makes the stepfather -- the regulation itself, the first part which I didn't read specifically provides that.

It says that born relation to a child's stepparent who is ceremonially married to the child's natural or adopted parent and is legally obligated to support the child under state law of general applicability which requires stepparents to support stepchildren to the same extent that natural or adopted are required to support their children.

Justice Byron R. White: But why would you say that was alright?

Mr. Francis X. Beytagh, Jr.: Well, I think the judgment is that you have then a real and enforceable obligation that's analogues to the obligation of a natural or an adoptive parent.

Justice Byron R. White: Well, if the state can substantiate the fact that there's a legal obligation to support the children in the house, his living in the house there's a legal obligation under the state law to support those children and if it's enforceable you would say the state regulation is alright?

Mr. Francis X. Beytagh, Jr.: Well, it has to be one that meets all the criteria that this regulation spells out which is one of general -- the person becomes just as natural or adoptive father or stepfather.

Now, most of these people simply don't want to be put in that position and I don't think most states are going to adopt --

Justice Byron R. White: Well no, but when you say that that would be alright, what you are really doing is assuming income.

Mr. Francis X. Beytagh, Jr.: But your -- well yes, and just as you're assuming income as to natural parent --

Justice Byron R. White: With a parent.

With their parent, with a natural parent living at home.

Mr. Francis X. Beytagh, Jr.: Right.

Justice Byron R. White: And then the parent moves out you no longer assume income, do you?

Mr. Francis X. Beytagh, Jr.: No, that's correct.

Justice Byron R. White: And but as long as he is at home you assume income.

Mr. Francis X. Beytagh, Jr.: That's correct.

Justice Byron R. White: Do you say you would be willing to assume income if the state had the proper law with respect to stepfather.

Mr. Francis X. Beytagh, Jr.: I think that that's a necessary conclusion, that's the way the regulation reads and for good or for bad, we have to support the regulation.

But I think that it coincides with the common sense.

Justice Byron R. White: You think it really -- you think this represents a professional expert judgment as to what likely reality is?

Mr. Francis X. Beytagh, Jr.: Well, I think that the idea is that when you have a man that's willing to do this much but then you have a more or less stable family unit that does not fit under the category --

Justice Byron R. White: But the experience would show that in the MARS situation it's just contrary to the reality assumingly.

Mr. Francis X. Beytagh, Jr.: I think so, I think that as soon as you try to put an obligation, a real obligation of support on these MARS people at least, their alternative is simply to get out and that California's statute both as to stepfathers and as to MARS provides that they have an obligation of support only when they're in the home, if they leave then they don't have an obligation, it evaporates.

Justice Byron R. White: Sure, sure well that's the result of this regulation has been to -- that some MARS have left.

Does that happen in one or two of these cases or why not?

Mr. Francis X. Beytagh, Jr.: I don't know whether it has been the result --

Justice Byron R. White: It must be that the California regulation has some real teeth in the thing.

Mr. Francis X. Beytagh, Jr.: Well, it has real teeth when it deprives people that need support of.

Justice Byron R. White: Well, I know that it deprives MARS out of the family must be because there's a real obligation as long as they stay there, then why isn't the statute --

Mr. Francis X. Beytagh, Jr.: No, the reason they don't stay there is because the money is cut off and since their income is assumed to be available but it is not really available because they have other children to support or whatever, then they move out because they are not in fact able to provide support.

Chief Justice Warren E. Burger: But I think there is another hypothesis for their moving out too and wasn't it one of the considerations in the development of the scheme namely that when they aid to dependent children stopped, the free boarder left because the income stopped.

Mr. Francis X. Beytagh, Jr.: Well --

Chief Justice Warren E. Burger: That didn't -- doesn't that show up in the legislative history?

Mr. Francis X. Beytagh, Jr.: Your Honor, I think it shows up in the early legislative history.

In King versus Smith, I think the Court made clear that the notion of punishing the kids by seeking to legislate morality for the mother had been abandoned by Congress in subsequent amendments.

Chief Justice Warren E. Burger: Well, I'm talking about the punishment of the children aspect, I'm talking about what you were addressing yourself to the reasons for the departure of this putative --

Mr. Francis X. Beytagh, Jr.: But to the extent that there is a notion of having stable family units, it seems to me that HEW's approach and not California fosters that because HEW's approach allows the reduction in the amount of benefit payments only when there is proof of actual income and therefore, when there is not actual income the MARS or the stepfather I assume will continue to reside with the children.

Now, to the extent that that's a value worth preserving, HEW's approach preserves, the California's does not.

California forces the man to move out of the house when he doesn't have income that helps support the children so that they won't receive the reduction, it won't be cutoff as to some of the people on this case were.

The reasons that we submitted and the reason stated in the brief, we think the District Court erred and the judgment should be reversed and remanded for further --

Justice Thurgood Marshall: Yeah, but the Supreme Court of California has a chance --

Mr. Francis X. Beytagh, Jr.: Alright.

Your Honor, my understanding is that Supreme Court of California has not had a chance to pass squarely on this.

There's some lower California Appellate Court --

Justice Thurgood Marshall: You don't know how they would construe their law on the later amendment to it.

Mr. Francis X. Beytagh, Jr.: That correct but I don't think that really the law needs too much construction perhaps counsel from California will illuminate us on this but the intermediate appellate court decision are quite ambiguous.

Frankly, they speak in terms of the obligation of support not being a general one that applies across the board but one tailored to AFDC.

Well, that's quite right it is one tailored to AFDC.

There was a case where one of these people said that this law was a deprivation of his right of property.

California couldn't do this and the Court said no that's not right, he is not being deprived of anything.

He simply -- his income is simply being assumed to have been transferred to the support of the children.

So, to the extent that this California authority, it's confusing and ambiguous but it at least raises questions as to whether the duty of support is anything more than a loser one.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr.Beytagh.

Mr.Linderman.

Argument of Jay S. Linderman

Mr. Jay S. Linderman: Mr. Chief Justice and may it please the Court.

I might -- I might start Mr. Justice Black in trying to answer your question regarding a determination by the Secretary of HEW of whether California is in compliance and if not, why not cut California off.

When this litigation started in the District Court, California officials were in the process then of trying to determine from HEW whether in fact, HEW felt that the California statute and regulations were in conflict and we were unable to even receive a definitive statement from HEW whether or not the secretary considered California to be in compliance or not.

And we urge the various correspondents on this subject was attached to our motion to dismiss filed in the District Court and we urge the District Court at that time that there is a procedure in the Social Security Act for resolving disputes between the states and HEW as to whether a state plan does or does not comply.

The secretary makes a determination of noncompliance.

The state is given the authority to petition the Court of Appeals for the particular circuit for determination of that specific issue.

We urge the District Court to allow us to do that or at least to first allow us to receive a --

Justice Hugo L. Black: It allows you to do what now?

Mr. Jay S. Linderman: To utilize the procedure set forth --

Justice Hugo L. Black: State?

Mr. Jay S. Linderman: In the Social Security Act provides a procedure for resolving a dispute between the states and HEW.

Justice Hugo L. Black: What is the --

Mr. Jay S. Linderman: What is the procedure?

Justice Hugo L. Black: Yes.

Mr. Jay S. Linderman: If HEW makes a determination of noncompliance of a state plan, the state may go to the Court of Appeals for the particular circuit in which the state is located.

Justice Byron R. White: May I just interrupt you for a moment.

It has to be formal disapproval about the state plan.

Mr. Jay S. Linderman: My understanding Mr. Justice is that it has to be a determination, the languages is a determination that --

Justice Byron R. White: Except but it does some kind of a formal determination?

Mr. Jay S. Linderman: A -- a formal determination.

Justice Byron R. White: They seek determination.

Is there a hearing, what happens there?

Mr. Jay S. Linderman: It -- in California what was happening at the time this suit started was considerable correspondence going back and forth between the governor and the director of the state primary social welfare.

Justice Byron R. White: Did he took by correspondent with the state officials and the HEW?

Mr. Jay S. Linderman: And the secretary at that time is Secretary Cohen.

Justice Byron R. White: But nothing in the way of a formal proceeding administratively before the board or something like that?

Mr. Jay S. Linderman: Nothing at that point because when the suit was filed, California was still in the process of trying to find out whether the secretary had even made a determination that California was not in compliance and then this lawsuit was filed in the middle of it, and we urge the District --

Justice Byron R. White: And we suggested that the review expressly provided that the statute in the appropriate Circuit Court of Appeals, a review of what?

Mr. Jay S. Linderman: Of the question of whether the state plan conflicts or conforms.

Justice Byron R. White: But wouldn't have to be reviewed some formal determination sometime?

Mr. Jay S. Linderman: I would assume so yes and that is what we were attempting --

Justice Byron R. White: I assume--

(Inaudible) --

Mr. Jay S. Linderman: I would assume that it is a written communicate from the Secretary of HEW that, dear Governor --

Justice Byron R. White: For example, would this be the case?

If your California officials had received from HEW a letter which said, we don't think that California plan complies with the federal regulations.

You could have judicial review on the Ninth Circuit of that letter of determination?

The HEW as I understand is only proceeded against two states and there's long history of this.

One is Connecticut and the other is Nevada, is that right?

Mr. Jay S. Linderman: Yes, Nevada.

Justice Byron R. White: Those are compliance proceedings.

Mr. Jay S. Linderman: This is --

Justice Byron R. White: They come into -- they come up to adjudication whether they can be reviewed has never been determined.

Mr. Jay S. Linderman: I think that's correct but what happened in the California instance was the state director of social welfare did receive a letter from the secretary, then Secretary Cohen setting forth various reasons why the secretary felt that California was not in compliance.

The director from California then wrote back to the secretary and said, “If this is a determination of noncompliance, then we respectfully request reconsideration but please tell us what it is that you are saying” and we never received a reply to that.

Justice Potter Stewart: Is that correspondence in the appendix here?

Mr. Jay S. Linderman: It's not in the correspondence Mr.Justice, it is attached to the motion to dismiss which the state filed in the District Court.

Justice Potter Stewart: So that would in the whole record that's here.

Mr. Jay S. Linderman: It's in the record but it's not in the appendix.

Justice Potter Stewart: And do you have statutory citation to this review procedure to which you refer?

Mr. Jay S. Linderman: I believe its Section 1116 of the Social Security Act.

I don't have the US Code citation but it is I believe its Section 1116.

Justice Hugo L. Black: Was it while the state and Federal Government when negotiation with reference to whether or not your state was in compliance that this suit was filed on the part of the led individual beneficiary in California?

Mr. Jay S. Linderman: I believe the timing Mr. Justice Black, the correspondence was in the summer of 1968, and the first of these two consolidated cases was filed in October of '68, but as far as the state was concerned, we had never received any definitive statement from the secretary as to whether we were or we're not in compliance when the lawsuit was filed.

Justice Hugo L. Black: Have you ever received ever since --

Mr. Jay S. Linderman: Never since, other the appearance of HEW as amicus in this proceeding alleging that we are not in compliance.

Justice Hugo L. Black: Between you and the alleged beneficiaries.

Mr. Jay S. Linderman: Pardon me.

Justice Hugo L. Black: As between California and the alleged beneficiary, that's the lawsuit now?

Mr. Jay S. Linderman: Right.

The lawsuit now is the alleged beneficiaries against the state alleging that the state is not in compliance with Federal law.

Chief Justice Warren E. Burger: Has any Court of Appeals has been called upon to act under this procedure?

Mr. Jay S. Linderman: To my -- I am not familiar with any Justice --.

Chief Justice Warren E. Burger: It hardly strikes me as an ideal way to litigate a complex legal questions that go directly on no record from an administrative determination to the Court of Appeals.

At least in all the other administrative reviews by the Court of Appeals there is a complete record.

Mr. Jay S. Linderman: I'm not certain that that's anymore improper or inappropriate method than coming directly to the United States Supreme Court to resolve the same question with not much more record.

Justice Potter Stewart: Well, actually that could be done, couldn't it in quite a different way if the executive branch of the United States of America cutoff a lot in California because you were not in compliance with the conditions under which those funds are made available under these categorical existence program.

California could then sue the United States of America in this Court as a Nisi Prius Court, is that right?

Mr. Jay S. Linderman: Yes, I would think so Mr. Justice Stewart.

Justice Hugo L. Black: Well, if United States voted that, do you think the alleged beneficiaries all over the state could sue you?

Mr. Jay S. Linderman: Could sue the state?

Justice Hugo L. Black: Yeah.

Mr. Jay S. Linderman: I'm not certain.

Justice Hugo L. Black: What's the difference with that lawsuit at this point?

Justice Byron R. White: Well, your state could have a Social Security wholly independent of ideal funds?

Mr. Jay S. Linderman: Of course, it could but I doubt very much.

I think I can speak for the state.

Justice Byron R. White: Not constitutionally speaking.

Mr. Jay S. Linderman: Of course, of course but I think I can speak for --

Justice Hugo L. Black: Would it have a right to administer, wouldn't it?

Mr. Jay S. Linderman: As it chose, I would think so.

Justice Potter Stewart: Subject to only the constitutional restrictions.

Mr. Jay S. Linderman: Constitutional restrictions would be the only one.

Justice Hugo L. Black: And as I understand it, there's no one to get challenge.

That there is no constitutional provision which will prevent California from spending its own fund in its own way, if it doesn't mix them up with the federal receipts.

Mr. Jay S. Linderman: Well, I think the appellants in this case are arguing that irrespective of the supremacy clause problem in the case that even assuming that there's no problem there that California is distributing its funds in violation of the Equal Protection Clause.

Justice Potter Stewart: Absolutely and that same argument would be made whether or not to any federal funds.

Mr. Jay S. Linderman: Definitely.

Justice Hugo L. Black: How do they raise it under the Equal Protection?

Mr. Jay S. Linderman: Their allegation is that the obligation which California places on MARS in a welfare home only as opposed to a MARS in a non-welfare home denies Equal Protection to the children in the welfare home and to the MARS in the welfare home.

Justice Hugo L. Black: That would raise a question purely under the state law.

Mr. Jay S. Linderman: They are raising the question --

Justice Hugo L. Black: And you could sue the state --

Mr. Jay S. Linderman: They are raising --

Justice Hugo L. Black: That wouldn't be tied up at all with the Federal Government's position in connection with compliance.

Mr. Jay S. Linderman: No, it would --

Justice Hugo L. Black: As I understand that lawsuit is based on quite a different theory.

Mr. Jay S. Linderman: Oh, it is.

But this is an aspect of their lawsuit also as the Equal Protection problem which assuming that California were running its own welfare program, not receiving federal matching funds presumably the same constitutional limitations are going to have to apply.

The only ones that would be eliminated would be the regulations of HEW and the act of Cardozo.

Justice Lewis F. Powell: I'd suppose that all of these was answered by Cardozo in that initial case in the Stewart Machine Company case back in 1936.

These are the conditions upon which the states would participate, the state need not participate.

They do participate unless -- to get federal funds, they must participate on the federal condition.

Mr. Jay S. Linderman: We don't question the fact that California must comply with valid HEW regulations and an act of Congress in order to be able to qualify to receive the federal funds.

We are not disputing that at all.

Justice Hugo L. Black: And suppose that's -- any question has been raised about that by anybody?

Mr. Jay S. Linderman: None whatsoever and nor do we question the authority of the secretary of HEW to issue rules and regulations to fill up the details of the Social Security.

Justice Hugo L. Black: If state wants to participate it would have to comply.

Mr. Jay S. Linderman: No question about it Mr. Justice Black.

Our position however is though that the secretary of HEW in his regulations has exceeded the scope of authority given to him by Congress in the Social Security Act.

We --

Justice Byron R. White: There is no question that that's controversy between that's involved in this case even though the parties of the State of California and the welfare benefit --

Mr. Jay S. Linderman: No question that that's the crucial --

Justice Byron R. White: There's no question that that issue is a case of controversy properly before this Court for decision making.

Mr. Jay S. Linderman: I would not -- I would conceive that yes.

My point initially was that there is an alternative procedures that the controversy could first be resolved in the Court of Appeals for the Ninth Circuit.

I assume though that even if that were resolved in the Court of Appeals for the Ninth Circuit that sooner or later it would reach here.

Justice Byron R. White: But you'd manage to do something somehow?

Mr. Jay S. Linderman: Yes.

The HEW regulation has two parts to it.

The first one is the secretary's definition of who maybe a parent which of course goes to the question of is the child a dependent child and eligible or not eligible for assistance.

Justice Potter Stewart: At all but that doesn't go to the question of the amount of money, it goes to the question of eligibility at all.

Mr. Jay S. Linderman: At all.

If the person is determined to be a parent, there is no eligibility with the exception of the unemployed parent and the optional AFDC --

Justice Potter Stewart: Well, with some if you have a chance but generally speaking if both parents are in the house ineligibility.

Mr. Jay S. Linderman: By definition, Social Security Act sets up AFDC eligibility for a child who is deprived of parental support because on the absence of a parent.

HEW in subsection A of its regulation 203.1 says that, the only person who can be a parent is a natural father, an adopted father or a stepfather who is legally obligated to support the child to the same extent as a natural or adoptive father.

If that's correct -- now California is not attempting to define children living with a MARS or stepfather as non-dependent children.

We are not trying to call the stepfather or the MARS a parent.

But under HEW's definition, the only thing California did wrong was to limit the stepparent liability to a stepparent in a welfare home.

If California had imposed an obligation on all stepfathers to support their children, then it seems to me that under the HEW regulation, California could determine all needy children in a home with a stepfather totally ineligible for aid and it certainly escapes me how the child -- the needy child in a welfare home derives anymore economic protection from the extension of the stepfather liability to a stepfather in a non-welfare home.

Justice Potter Stewart: But if you're right then you are violating the Federal law in a different way because you're spending federal money that you're not authorized to spend because you're giving it to children who are ineligible under the federal statute.

Mr. Jay S. Linderman: But we can easily remedy the situation Mr. Justice Stewart by simply exchanging our support obligation statute and making all stepfathers liable for the support of their children.

Justice Potter Stewart: As I say if you do that, then if you give any money to a family of the stepfather then you're making an unauthorized expenditure of federal money and you're violating the federal law.

Mr. Jay S. Linderman: Which to me would be frustrative of the purposes of AFDC which is to impose a support obligation on a stepfather in a relatively affluent family.

Certainly, it gives no economic protection to the child with a stepfather in a poor family.

It makes no sense but if the HEW regulation is valid, I think I can state with relative certainty that California will just extend its stepfather liability statute and cut off all children in stepfather homes.

Justice Thurgood Marshall: And that in turn will be litigated I assume.

Mr. Jay S. Linderman: I would assume.

Justice Byron R. White: Well, you won't care about unless the stepfather has an income.

Mr. Jay S. Linderman: Assuming an employed stepfather because if you were unemployed then the family would qualify under California's optional AFDCU in the argument.

Justice Byron R. White: You won't cut off anymore children as you are now?

Mr. Jay S. Linderman: We are not cutting off children now though Mr. Justice White, we're --

Justice Byron R. White: You are reducing payments by assuming the income of the stepfather.

Mr. Jay S. Linderman: We're reducing payments --

Justice Byron R. White: Availability --

Mr. Jay S. Linderman: Assumed availability because of the support obligation.

Justice Byron R. White: Sure, so you reduce the payments on accountability.

One, you wouldn't do it -- you wouldn't cut off anymore if you extend that your obligation is right across the board.

Mr. Jay S. Linderman: Some children living with stepfathers are still receiving aid because the stepfather's net income is insufficient to bring the family up to the states' maximum budget for the family.

But if we extend the stepfather liability to non AFDC family stepfathers, then the children in the AFDC family with the stepfathers are going to be totally cutoff.

There are now children in the AFDC stepfather family who are still receiving aid, all be it less aid because of the obligation of support on the --

Justice Byron R. White: What about the MARS?

Mr. Jay S. Linderman: It seems to me --

Justice Byron R. White: If your old law, you said you changed it, you put the obligation on him to do so --

Mr. Jay S. Linderman: The old -- it still does in a different fashion.

Justice Byron R. White: -- you've modified.

Mr. Jay S. Linderman: We've modified it but the statute which was the subject of litigation in the court below, the obligation was that the MARS had to support the children in his home.

Justice Byron R. White: Just like the stepfather does.

Mr. Jay S. Linderman: Like the stepfather and I would submit that if HEW thinks that you can extend statewide general law of amicability to a stepfather and thereby make no --

Justice Byron R. White: Can do it with the man.

Mr. Jay S. Linderman: Can do it with the man equally as well and in fact, I would think might have to do it not because of any moral antipathy to the common law marriage but if you don't do it, a man is crazy to marry the welfare mother.

Justice Byron R. White: But what the -- is the MARS issue a live, a real issue here?

Mr. Jay S. Linderman: Oh, I think very definitely so.

Justice Byron R. White: Because of back payments or what?

Mr. Jay S. Linderman: Yes, yes.

Justice Byron R. White: Is that all?

Mr. Jay S. Linderman: There --

Justice Byron R. White: Because the new regulation is not an issue in this suit?

Mr. Jay S. Linderman: No yet, there's -- no, it is not an issue in this suit but the same problem, the problem of assuming that there is a meaningful support obligation that's a different kind of obligation now.

But the same question of whether the obligation that California imposes is an enforceable one and a source of a resource to the child will remain even under the new regulation, it will take on different --

Justice Byron R. White: Don't you -- wouldn't you suppose though that as a matter of experience you could justify assuming income -- assuming availability of income where the real parent is living at home and have a wholly different experience with stepfathers or MARS who are living in the home, just in terms actual availability of income.

Mr. Jay S. Linderman: If your question is directed to the point isn't a natural father more apt to support his child than a stepfather, is that the gist of your question?

Justice Byron R. White: That's part of it, yes.

Mr. Jay S. Linderman: I would say, yes, if the kind of stepfather or the man in the house that California is talking about is the same kind of a man as Alabama had in King versus Smith.

Mr. Jay S. Linderman: Because the Federal regulation Mr. Justice White is not geared to the factual realities of who these men are that California is concerned with.

They are not the midnight visitor in King versus Smith who had a family of his own and nine children and no income.

Justice Byron R. White: I would think the invalidity of it might be is it permit the assumption of income or availability of income where there is a statewide law of general applicability if that's contrary to experience.

Mr. Jay S. Linderman: I think the Social Security Act compels assumption of income though where there's a law of support.

As this Court interpreted the purposes of AFDC in King versus Smith, it was to provide support for children without -- who could not --

Justice Byron R. White: Do you think it would be invalid under the Social Security Act for HEW to provide by regulation that income of natural parents, availability of income or the natural parent living in the home will not be assumed?

Mr. Jay S. Linderman: Yes, I think it would be invalid.

Justice Byron R. White: Under the statute?

Mr. Jay S. Linderman: Under the Social Security Act as interpreted by this Court in King versus Smith.

That Congress expects that when there is a breadwinner in the home that the breadwinner will support the child and the Social Security Act says that the state has to -- the second part of this is that the state has to determine the extent of need of the children in the home and the child is deemed less needy because of the resource which is assumed by Congress in view to the benefit of the child because of the support obligation.

Chief Justice Warren E. Burger: Mr.Linderman, I think you used the term that the assumption was compelled.

Now, that assumption also depends upon the enforceability of the support against this man in the house.

Is that a safe assumption or rational assumption that there is any real enforceability against the man in the house?

Mr. Jay S. Linderman: I think there is Mr. Chief Justice.

Chief Justice Warren E. Burger: How?

By suits against the man?

Mr. Jay S. Linderman: Yes.

Chief Justice Warren E. Burger: How many lawyers is it going to take the deal with the 500,000 people on welfare in Los Angeles alone?

Mr. Jay S. Linderman: I appreciate that problem but it's not any different than the child living with a natural father who may not support it.

The child or his mother has to sue the man not the state.

The state doesn't pay aid and then pursue the man.

The child has to get the money from the man.

Chief Justice Warren E. Burger: Does this record show what is the ratio of unemployed natural fathers whose children are receiving this aid as compared with the man in the house type of situation, any information on that at all?

Mr. Jay S. Linderman: Unemployed fathers, not that I know of Your Honor.

There are statistics that would indicate how many families we're talking about which contain -- the figures are July 1968 and at that time there were roughly 191,000 families -- AFDC families in California and of that there were 6,700 families with the stepfather and 2,800 families with the MARS.

A total of roughly 9,500 families out of 191,000 families but of the 191,000, I am not familiar with the statistics on how many of those are unemployed fathers.

What I'm trying to get at is that this assumption that you are talking about is based on further assumption of the enforceability against this man.

Mr. Jay S. Linderman: That's correct and it's the same assumption as applies with a natural father in the home and it's an assumption that there is an enforceability.

Chief Justice Warren E. Burger: But wouldn't you concede that it is easier to enforce that claim against the natural father by the usual traditional processes that it is against these transient men in the house.

Mr. Jay S. Linderman: But Your Honor by definition these men are not transients.

These are --

Chief Justice Warren E. Burger: By whose definition?

Mr. Jay S. Linderman: By the state definition before the application of the rule even can begin the person -- the man in the house by definition is living in the home and is, in stepfather case, ceremonially married to the mother or in the MARS case is living in the home and has either assumed financial obligations on behalf of the family or comports himself in the community as husband and wife.

And one of the crucial criteria of determining who is the MARS is that he has no other alternative place of residence.

Just as his family and to the extent that he is a trencher the moment he leaves the home the child is restored the eligibility.

Justice Thurgood Marshall: Mr. Linderman, do I understand you correctly that the child and the wife have to go to Court to get the support from the husband who left?

Mr. Jay S. Linderman: Who has left?

Justice Thurgood Marshall: Yes.

Mr. Jay S. Linderman: They would have to go to Court only to the extent to collect back payments that might be due.

Once the man leaves the house --

Justice Thurgood Marshall: In the California welfare system, you mean that welfare system doesn't do that?

Mr. Jay S. Linderman: Not to collect the back payments.

Justice Thurgood Marshall: You don't have a special department that that's all they do.

Mr. Jay S. Linderman: Not for the MARS or the stepfather.

Justice Thurgood Marshall: No, no I said for the legitimate father.

Mr. Jay S. Linderman: For the legitimate father, yes.

Justice Thurgood Marshall: So you go after him to make him pay his debts.

Mr. Jay S. Linderman: After he leaves the house.

Justice Thurgood Marshall: After he leaves his house.

Mr. Jay S. Linderman: After he leaves the house but not one of his --

Justice Thurgood Marshall: I thought you said the responsibility was upon the children?

Mr. Jay S. Linderman: While the man is in the house.

While the man is in the house be he a natural father or adoptive father or stepfather or MARS, the state does not pursue his resources for the child.

Justice Thurgood Marshall: Even if the wife applies for relief?

Mr. Jay S. Linderman: If the wife applies for relief in the natural father case and he is living in the home, relief is denied, they are ineligible by definition.

Justice Thurgood Marshall: The minute he leaves, the welfare makes him pay if they find that he has the money.

Mr. Jay S. Linderman: If they can find it.

But with MARS, the state does not pursue it because there's no more obligation and the state pays aid at that point in time.

The other one important resource which I think is unique in the West, particularly in California, in the case of the stepfather is that under California community property law, the earnings of the stepfather are community property in which the wife, the welfare mother has a vested present one-half interest.

Half of his earnings are hers.

Chief Justice Warren E. Burger: That's with the ceremonial marriage.

Mr. Jay S. Linderman: That's what the stepfather only.

Yes, after the ceremonial marriage, there is no community property in a putative marriage.

There is in a meretricious -- in the putative there is, in a meretricious there is not.

In other words, these people know they are not married, the MARS and the mother and there is no community property there.

If one of them harbors the mistake and belief that they are married, there can be community property there.

But I'm talking about the situation where the mother has ceremonially married the man.

Community property then attaches to his earnings, and half of his earnings are hers.

I would submit that if there is anything that is a resource which the Social Security Act commands California to consider in determining need, that is a resource.

Again, the mother may have to take legal action to protect her half interest, but that's no different than the mother living with the natural father of her children.

She also may have to take legal recourse but the obligation is clearly enforceable.

Justice Byron R. White: What specific language in the Social Security Act do you rely on for arguing that the Federal regulation is invalid?

Chief Justice Warren E. Burger: Do you have that in appendix to your --

Mr. Jay S. Linderman: Yes, it appears at several places.

It's in the appendix -- it's cited throughout all the briefs.

Chief Justice Warren E. Burger: I wanted a quick easy place where we can find it.

Justice Potter Stewart: What is the specific language?

Mr. Jay S. Linderman: I read the language.

The place is the first page of the appendix in the Government's brief.

This is Section 602(a)(7).

It's one of the series of requirements of the Social Security Act as to what state plan must provide and says that a state plan for aid and services to needy families with children must, underscore must, provide that the state shall in determining need take into consideration any other income and resources of any child or relative claiming aid.

Justice Potter Stewart: We're talking about income and resources.

Mr. Jay S. Linderman: Yes.

Justice Potter Stewart: Now, you are saying that the emphasis of that act have a regulation says that income and sources are not going to be assumed.

Mr. Jay S. Linderman: Exactly.

Justice Potter Stewart: That the statute requires that you assume that was Social Security?

Mr. Jay S. Linderman: Not assumed.

No, no, our position --

Justice Byron R. White: You're talking about income and resources of the child.

Mr. Jay S. Linderman: Yes, of the child or the mother.

See, it's income and resources of any child or relative claiming aid.

Justice Byron R. White: And who's claiming aid?

Mr. Jay S. Linderman: The mother and the child.

That's the child or the mother.

Justice Byron R. White: So you've got to say that income don't have to assume the availability of income from the MARS and stepfather.

Either to the mother of the child.

You said that Act requires that.

Whether it's a MARS in the house or stepfather in the house and the state has legal obligation that this Act requires that you assume that that income is available to the child.

Mr. Jay S. Linderman: Assume that it is available because it is a resource.

It's something in addition to prove an income.

Justice Byron R. White: Although, it is the natural resource must be factual.

Mr. Jay S. Linderman: But neither is the resource of the child living with a natural father.

The natural father may not --

Justice Byron R. White: That is the point for you and I would make the same argument that perhaps the HEW did say that it is the parent living in the house as I am going to assume.

Mr. Jay S. Linderman: As this Court pointed out in King versus Smith, if there is a legal obligation of support, proof of actual contribution cannot be determinative.

That's the language --

Justice Byron R. White: They may not be determinative of the -- you pick the regulation which requires proof of active contribution as invalid to --.

Mr. Jay S. Linderman: Yes, because it defines a child in California to be resourceless.

The child can have nothing other than the income that the state through some administrative miracle can --

Justice Byron R. White: As far as regularly and definitely, that would be the excuse to contribute anything to the support the child regardless of the legal obligation for him imposed by the state, is that what you were saying?

Mr. Jay S. Linderman: No, but the mother will undoubtedly kick the man out of the house.

Chief Justice Warren E. Burger: That's another assumption.

Mr. Jay S. Linderman: But it is a weapon.

Justice Byron R. White: That's not very relevant for a legal --

Mr. Jay S. Linderman: I think it is Mr. Justice White.

It's a weapon.

It's a method of enforcement of the obligation that the state is reducing the grant and the mother can say with real meaning support me or get out.

And the facts of this case, the complaints in this case despite their protestations that the men are not supporting the children in the house.

The complainants themselves admit that due to the emergency as the language that the plaintiff appellant used that due to the emergency caused by this state statute, the men are supporting the children until the statute is declared invalid.

The statute does work, it is enforceable and the men are supporting the children at least some of the names plaintiffs are and the record will show that.

The other fact is that in the case of the stepfather and presumably in the MARS as well.

It's literally impossible for them not to support them at least in some of these cases where the man has taken the welfare mother and her children into his home.

He has put a roof over their head which is the case in several of the named plaintiffs in this appeal.

The man has brought the children into his home.

Now, certainly to some extent, he is putting a roof over their head which is a lessened need for public expense to support that family.

Justice Potter Stewart: California does have a maximum grant regulation, does it not?

Mr. Jay S. Linderman: Under challenge.

Yes, it does have a maximum grant and the case has been argued before this Court.

Justice Potter Stewart: Right, and the --

Mr. Jay S. Linderman: Yes.

Justice Potter Stewart: And do you have -- if you work out a standard of need of your system and it varies as far as not with the kind of living, with the kind of shelter that they have?

Mr. Jay S. Linderman: There is a maximum amount of shelter need.

Although, there is another case in California on that issue, that the state law and the Social Security Act although the argument is compelled the state pay actual shelter needs.

But the -- the current system is that there are allocated specific amounts for each of the various needs, shelter, food, clothing, and so on.

Justice Potter Stewart: Right.

But with a maximum per family unit?

Mr. Jay S. Linderman: With a maximum per family unit up to the point, I believe it's ten children and from that point on there is $6.00 added per child after ten children which the attack of the statute is in that force is --

Justice Potter Stewart: --is violative of the Federal statute and violative of the Equal Protection clause of Fourteenth Amendment.

Mr. Jay S. Linderman: Yes.

Justice Potter Stewart: Thank you.

Mr. Jay S. Linderman: I believe Mr. Chief Justice through the questioning that I've covered most of the points that I wished to cover unless the Court has further question.

Chief Justice Warren E. Burger: Would it be fair to say that part of the problem or at least -- or part of the problem as to what extent leverage may be used against the children to enforce obligations against the adults?

Mr. Jay S. Linderman: I think that is somewhat fair.

Chief Justice Warren E. Burger: Would you -- would you state it in your own way?

Mr. Jay S. Linderman: I think the question is how much -- taking King versus Smith as the starting point of what it is and what is not allowable.

The child in a home where there is a legally obligated man -- a support obligated man, a burden may fall on that child because the person, the man may not be performing his duty.

To that extent, inherent in the Social Security Act, in the AFDC program is that the child may be harmed because of a delinquent father.

But so long as he remains in the house, the burden is the child's and our essential argument is that the support obligation which California imposes on MARS or stepfather in the house may put a burden on the child.

Although, we question that factually that does happen that often as we think the record in this case will show that it is not as absurd as the appellants would argue to expect that a man will support someone other than his own children.

But to the extent that there is a support obligation, the Social Security Act resubmit, makes that child either a non-dependent child because it's a natural parent or a less needy child because of a perhaps lesser support obligation, clearly enforceable but the extent of the obligation on the man may be less in terms of dollar amount.

The support obligation on natural father is without limitation.

The support obligation on the MARS and the stepfather, as the state computes the amount of the obligation may turn out to be a lesser amount than the amount the natural father would have to pay.

Chief Justice Warren E. Burger: Well, if you have a natural working father, if you let me put this hypothetically to you, a natural father who is working but who more or less regularly drinks up half of his earnings.

Then, we have deprived children then as a result, can they get aid to the dependent children while he is living in the house gainfully employed.

Mr. Jay S. Linderman: No.

Chief Justice Warren E. Burger: So that you have children who suffer as consequence of the conduct of the adults which is beyond the reach of Government.

Mr. Jay S. Linderman: The Social Security Act is only one of many programs to try alleviate poverty.

But to the -- it's limited, it is to provide support for children who do not have some breadwinner to look to.

It's not essentially that the breadwinner perform his duty of supporting the children.

Congress expected that the bread winner would support the children in his home.

California expects the same thing but the natural father or the MARS or the stepfather may spend his earnings on wine, women or so or whatever, the children may suffer but the social -- but the AFDC program is not the way that you solve that problem.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Linderman.

I am not sure whether there is any time left or not, my markings are not clear.